Vs. Jaganath  Insc 552 (5 November 2003)
Raju & Arijit Pasayat
CIVIL APPEAL No.8596/2003 (Arising Out of S.L.P. (C) No. 14360 of 1998] ARIJIT
granted in S.L.P. (C) No. 14360 of 1998.
the appeals being interlinked are disposed of together.
the original appellant's claim of being the adopted son of Bala Bux and Smt. Nangi
having been rejected by the Trial Court (Court of sub-Judge, Jaipur City),
First Appellate Court (Additional District Judge, Jaipur City) and the
Rajasthan High Court by the impugned judgment in second appeal, the appeal (CA
No. 6974 of 1996) has been filed. The other appeal is an offshoot of the other.
The claim is intricately linked with functioning as a Pujari in the temple of Thakurji Shri Gopalji in the Jaipur City. The litigation started several
decades back relating to the present controversy as to adoption.
have been series of other litigations which are intimately linked with that
basic issue also. During the pendency of the appeals the appellant Kashi Nath
had died and his legal heirs were impleaded.
to the genesis of the dispute regarding adoption the same started when the Kashi
Nath the original appellant filed a suit for declaration that the temple called
Thakurji Sri Gopalji belongs to the entire class of Vaishnava Worshippers and
the defendants-respondents herein who belonged to Khati Community have no
exclusive right over it and further plaintiff is exclusively entitled to manage
the temple, to do sevapuja and to get offerings made to idols. The claim was
resisted by the defendants on a number of grounds, one of which was that the
plaintiff was not the adopted son of Bala Bux. The Trial Court framed issues
and after recording evidence decreed the plaintiff's suit by judgment dated
30.5.1964. Defendants preferred appeal and the learned District Judge, Jaipur City, set aside the judgment of the Trial Court by judgment
dated 3.6.1969 dismissing the plaintiff's suit.
filed an appeal before the High Court which was registered as SB Civil Second
Appeal No. 149/69. The learned Single Judge who heard the appeal set aside the
First Appellant Court's judgment dated 6.3.1969 and remitted the matter back to
the said Court with direction that an amended issue no.4 was to be framed and
the parties were to be granted opportunity to lead evidence on the amended
issue. The amended issue reads as follows:
there was ceremony of giving and taking at the time of alleged adoption of the
plaintiff to Bala Bux and whether the plaintiff is a legally and validly
adopted son of the Bala Bux?" The First Appellate Court sent the matter to
the Trial Court for recording evidence on the additional issue and also to
remit its findings. The Trial Court recorded the evidence led by the parties
and returned the findings on 25.4.75 deciding amended issue no.4 against the
plaintiff, and holding that he was not the adopted son of Bala Bux. The
Additional District Judge after hearing the parties confirmed the said findings
of the Trial Court and ultimately accepted the appeal and dismissed the suit of
the plaintiff by judgment dated 9.12.75.
a second appeal was filed before the High Court. During pendency of the appeal
in the High Court, defendant-respondent no.1 Narain died and as his legal
representatives were already on record his name was deleted. Another
defendant-respondent named Smt. Dekha wife of Kalyan Sahai also died during the
pendency of the appeal and her legal representatives were also on record, therefore,
her name was also deleted from array of respondents.
of the appellant before the High Court was that the approach of the Trial Court
and the First Appellate Court was erroneous in view of several judgments/orders
passed in different proceedings. It was clearly established that the appellant
was the adopted son of Bala Bux.
minor variations highlighted by the Trial Court and the First Appellate Court
were but natural, when one considers the position that the adoption was claimed
to have been taken place in 1941. Since the evidence was recorded after about
three decades the Courts' should not have insisted on strict proof and slight
evidence is sufficient. Stand of the defendants-respondents was that the
question whether one is adopted son of another is essentially a question of
fact and the second appeal was not maintainable. The High Court by the impugned
judgment held that pleadings were at variance with the evidence. There was no
evidence whatsoever to support the plaintiff's case as reflected in the plaint
and on the contrary evidence led by the plaintiff after the matter was remitted
is completely at variance with the assertions made in the plaint and,
therefore, have to per se not be relied at all.
it was held that findings of fact recorded on the basis of evidence were not
open to challenge in the second appeal.
counsel for the appellant submitted that the approach of the High Court is
unsupportable. There were several orders and judgments which clearly establish
that Kashi Nath was the adopted son of Bala Bux.
Courts below erred in ignoring those and attaching undue importance to minor
variations. When the documentary evidence was sufficient merely because the
oral evidence was somewhat not in line with the pleadings that should not have
weighed with the courts below.
contra, learned counsel for the respondents submitted that in this case
adoption is claimed to have been made prior to enactment of Hindu Adoption and
Maintenance Act, 1955 (for short the 'Act'). Several essential ingredients have
to be established to come to a conclusion about the valid adoption and, the
evidence fell short of that legal requirement. Additionally, the evidence and
the pleadings were not only at variance but directly contradictory and self
destructive of the case on the claim of adoption. Therefore, the High Court was
justified in dismissing the second appeal when basic question is whether there
was a adoption, which is nothing but a conclusion arrived as of a fact.
5 provides that adoptions are to be regulated in terms of the provisions
contained in Chapter II. Section 6 deals with the requisites of a valid
adoption. Section 11 prohibits adoption; in case it is of a son, where the
adoptive father or mother by whom the adoption is made has a Hindu son, son's
son, or son's son's son, whether by legitimate blood relationship or by
adoption, living at the time of adoption. Prior to the Act under the old Hindu
Law, Article 3 provided as follows:
male Hindu, who has attained the age of discretion and is of sound mind, may
adopt a son to himself provided he has no male issue in existence at the date
of the adoption.
Hindu who is competent to adopt may authorize either his (i) wife or (ii) widow
(except in Mithila) to adopt a son to himself." Therefore, prior to the
enactment of the Act also adoption of a son during the lifetime of a male issue
was prohibited and the position continues to be so after the enactment of the
Act. Where a son became an outcast or renounced Hindu religion, his father
became entitled to adopt another. The position has not changed after enactment
of Caste Disabilities Removal Act (XXI of 1850), as the outcast son does not
retain the religious capacity to perform the obsequial rites. In case parties
are governed by Mitakshara Law, additionally adoption can be made if the
natural son is a congenital lunatic or an idiot.
origin of custom of adoption is lost in antiquity. The ancient Hindu Law
recognized twelve kinds of sons of whom five were adopted.
five kinds of adopted sons in early times must have been of very secondary
importance, for, on the whole, they were relegated to an inferior rank in the
order of sons. Out of the five kinds of adopted sons, only two survive today,
namely, the Dattaka form prevalent throughout India and the Kritrima form confined to Mithila and adjoining
districts. The primary object of adoption was to gratify the means of the
ancestors by annual offerings and, therefore, it was considered necessary that
the offerer should be as much as possible a reflection of a real descendant and
had to look as much like a real son as possible and certainly not be one who
would never have been a son. Therefore, the body of rules was evolved out of a
phrase of Saunaka that he must be 'the reflection of a son'. The restrictions
flowing from this maxim had the effect of eliminating most of the forms of
adoption. (See Hindu Law by S.V. Gupte, Third Edition at pages 899-900). The
whole law of Dattaka adoption is evolved from two important texts and a
metaphor. The texts are of Manu and Vasistha, and the metaphor that of Saunaka.
Manu provided for the identity of an adopted son with the family into which he
was adopted. (See Manu Chapter IX, pages 141-142, as translated by Sir W.
Jones). The object of an adoption is mixed, being religious and secular.
According to Mayne, the recognition of the institution of adoption in early
times had been more due to secular reasons than to any religious necessity, and
the religious motive was only secondary; but although the secular motive was
dominant, the religious motive was undeniable. The religious motive for
adoption never altogether excluded the secular motive. (See Mayne's Hindu Law
and Usage, 12th Edition, page 329).
held by this Court in V.T.S. Chandrashekhara Mudaliar v. Kulandaivelu Mudaliar
(AIR 1963 SC 185), substitution of a son for spiritual reasons is the essence
of adoption, and consequent devolution of property is mere accessory to it; the
validity of an adoption has to be judged by spiritual rather than temporal
considerations, and, devolution of property is only of secondary importance.
Singh and Anr. v. Harnam Singh and Anr. (AIR 1954 SC 581), it was observed by
this Court that under the Hindu Law adoption is primarily a religious act
intended to confer spiritual benefit on the adopter and some of the rituals
have, therefore, been held to be mandatory, and compliance with them regarded
as a condition of the validity of the adoption. The first important case on the
question of adoption was decided by the Privy Council in the case of Amarendra Mansingh
v. Sanatan Singh (AIR 1933 PC 155). The Privy Council said:
the Hindus, a peculiar religious significance has attached to the son, through Brahminical
influence, although in its origin the custom of adoption was perhaps purely
secular. The texts of the Hindus are themselves instinct with this doctrine of
religious significance. The foundation of the Brahminical doctrine of adoption
is the duty which every Hindu owes to his ancestors to provide for the
continuance of the line and the solemnization of the necessary rites."
With these observations it decided the question before it, viz., that of
setting the limits to the exercise of the power of a widow to adopt, having
regard to the well established doctrine as to the religious efficacy of son-
ship. In fact, the Privy Council in that case regarded the religious motive as
dominant and the secular motive as only secondary.
object is further amplified by certain observations of this Court. It has been
held that an adoption results in changing the course of succession, depriving
wife and daughters of their rights, and transferring the properties to
comparative strangers or more remote relations. (See Kishori Lal v. Chaltibai
(AIR 1959 SC 504). Though undeniably in most of the cases motive is religious,
the secular motive is also dominantly present. We are not concerned much with
this controversy, and as observed by Mayne it is unsafe to embark upon an
enquiry in each case as to whether the motives for a particular adoption were
religious or secular and an intermediate view is possible that while an
adoption may be a proper act, inspired in many cases by religious motives,
Courts are concerned with an adoption, only as the exercise of a legal right by
certain persons. The Privy Council's decision in Amerendra's case (supra), has
reiterated the well established doctrine as to the religious efficacy of
son-ship, as the foundation of adoption. The emphasis has been on the absence
of a male issue. An adoption may either be made by a man himself or by his
widow on his behalf with his authority conveyed therefor. The adoption is to
the male and it is obvious that an unmarried woman cannot adopt, for the
purpose of adoption is to ensure spiritual benefit for a man after his death
and to his ancestors by offering of oblations and rice and libations of water
to them periodically. Woman having no spiritual needs to be satisfied, was not
allowed to adopt for herself. But in either case it is a condition precedent
for a valid adoption that he should be without any male issue living at the
time of adoption.
the judgments of the Trial Court, First Appellate Court and the High Court it
is clear that there was no consistency so far as the claim regarding the
adoption is concerned particularly as to who and at what point of time it was
made. The High Court has taken great pains to extract the relevant variations
to indicate as to how it cut at the very root of plaintiff's claim. As noted by
the Privy Council in Siddiqui Mohammad Shah v. Mst. Saran and Ors. (AIR 1930 PC
57), and M/s Trojan and Co. v. RM. N.N. Nagappa Chetiar (AIR 1953 SC 235) when
the evidence is not in line with the pleadings and is at variance with it and
as in this case in virtual self contradiction, adverse inference has to be
drawn and the evidence cannot be looked into or relied upon.
as rightly submitted the conclusion whether there was adoption is essentially
one of fact merely depending upon pure appreciation of evidence on record. This
position has been stated in several decisions of this Court; e.g., Rajendra
Kumar v. Kalyan (dead) by Lrs. (2000 (8) SCC 99) and Raushan Devi v. Ramji Sah
and Ors. (2002 (10) SCC 205). Consequently, no exception could be taken to the
well- merited findings concurrently recorded by the courts below, with which
the High Court also rightly declined to interfere on the facts and
circumstances of this case.
only result of Civil Appeal No. 6947 of 1996 is dismissal, which we direct.
Consequentially the connected appeal also stands dismissed. Costs made easy.