Shri Kishori Lal Vs. Mst. Chaltibai
 INSC 122 (1 December 1958)
IMAM, SYED JAFFER DAS, S.K.
CITATION: 1959 AIR 504 1959 SCR Supl. (1) 698
CITATOR INFO :
F 1983 SC 114 (19) R 1987 SC 962 (4)
Hindu Law-Adoption, proof of-Evidence not
proving adoption- Estoppel-Both parties knowing true facts, if doctrine
applicable-Admissions and conduct of Parties, if can Prove adoption.
The respondent filed a suit for declaration
and possession of certain properties left by her deceased husband L. The
appellant contested the suit on the grounds that L had adopted him as his son
six months before his death In addition to the oral evidence of adoption the
appellant alleged that he performed the obsequies of L as such adopted son,
that on the thirteenth day after the death of L he was taken by the respondent
in her lap, that he entered into possession of the estate of L, that the 699
respondent performed his marriage and that he was recognised as the adopted son
of L even by the respondent. The appellant further pleaded that the respondent
was estopped from challenging his adoption by her representations in previous
legal proceedings and in documents and on account of the fact that the
appellant had by this adoption lost his share of the properties in his natural
family. The respondent denied both the adoption and the treatment of acceptance
of the appellant as the adopted son of L. The trial Court dismissed the suit
holding the adoption proved.
On appeal the High Court held the adoption
was not proved and decreed the suit. Both Courts held that the respondent was
not estopped from challenging the adoption.
Held, that the High Court. had correctly held
that the adoption of the appellant by L had not been established. As an
adoption results in changing the course of succession, the evidence to support
it should be such that it should be free from all suspicion of fraud and so
consistent and probable as to leave no occasion for doubting its truth.
Held further, that the. respondent was not
estopped from disputing the adoption. The correct rule of estopped applicable
in the case of adoption is that it does not confer status; it only shuts the
mouths of certain persons if they try to deny the adoption. But where both parties
are conversant with the true state of facts the doctrine of estopped has no
application. Admissions made by a party are not conclusive, and unless they
constitute estopped, the maker is at liberty to prove that they were mistaken
or were untrue. Presumptions arising from the conduct of a party cannot sustain
an adoption even though it might have been acquiesced in by all concerned when
the evidence shows that the adoption did not take place.
Mohori Bibi v. Dhurmdas Ghosh, (1902) 30 I.A.
114, relied upon.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 177 of 1955.
Appeal from the judgment and decree dated September 28, 1953, of the former Nagpur High Court in First Appeal No.
115 of 1951, arising out of the judgment and
decree dated July 25, 1951, of the Court of Additional District Judge,
Bhandara, in Civil Suit No. 14-A of 1957.
C. B. Aggarwala and Radheylat Aggarwal, for
S. P. Sinha and S. N. Mukherjee, for the
1958. December 1. The Judgment of the Court
was delivered by 700 KAPUR, J.-This is an appeal against the judgment and
decree of the High Court of Nagpur reversing the decree of the Additional
District judge dismissing the plaintiff's suit.
The appellant before us is the defendant
Kishori Lal who claimed to be the adopted son, adopted by the husband of the
plaintiff, Mst. Chaltibai who is the respondent in this appeal.
The suit out of which this appeal arises was
brought by Mst. Chaltibai, the widow of Lakshminarayan, a Marwari Aggarwal of
the District of Bhandara against Badrinarayan defendant No. 1 and his son
Kishori Lal defendant No. 2 now appellant for a declaration that properties in
sch. B & C belonged to her as heir to her deceased husband Lakshminarayan
and for possession of the property in schedule D. The facts of the litigation
relevant for the purpose of this judgment are these: Badrinarayan and
Lakshminarayan were two brothers the former who was elder was carrying on
business at Raipur and the latter who was younger carried on business in the
ancestral village named Tirora where it is stated Badrinarayan also was doing
some business. Lakshminarayans first wife died in 1919 leaving a son and a
daughter. In 1922 Lakshminarayan married the respondent Mst. Chaltibai.
His son died sometime after this marriage and
therefore the only remaining child of Lakshminarayan was the daughter Mst. Jamnabai
who was married to one Chotteylal. On January 6, 1936, Lakshminarayan died of a
heart disease leaving his estate which is given in schs. B, C and D and is
valued at about Rs. 30,000. Although the plaintiff Chaltibai, now respondent,
had alleged that Lakshminarayan died suddenly and did not suffer from any heart
disease previous to his death, the appellant pleaded that Lakshminarayan
developed heart trouble in 1934. He also pleaded that because of this heart
trouble Lakshminarayan became despaired of begetting a son and therefore
adopted in Jaisth (May-June) 1935 the appellant Kishorilal then aged 13 years
who was the youngest of the five sons of his brother Badrinarayan, the others
being Mohanlal, Gowardhan, Nandlal and Narayan. He further pleaded that after
701 his adoption he resided with Lakshminarayan as his adopted son and when
Lakshminarayan died he performed his obsequies as such adopted son, was placed
on the gaddi and the turban was tied on his head in accordance with the custom
of the caste; that he was on the thirteenth day (tervi) taken by the respondent
Chaltibai in her lap from Badrinarayan with the consent and in the presence of
the relations of Lakshmi- narayan on the thirteenth day of the death of
Lakshminarayan ; that he entered into possession of the estate of the deceased
Lakshminarayan and was recognised as his adopted son even by the respondent who
continued to accept and treat him as such upto 1946; and in 1942 the respondent
performed his (the appellant's marriage). After he attained majority he managed
the estate himself and there was a partition in the family of Badrinarayan on
October 30, 1943, in which the appellant, because of his having been given out
in adoption in another family, received no share.
The respondent in the plaint denied both the
adoption and the treatment or acceptance of the appellant as an adopted son.
She also stated that she was an illiterate purdanashin woman who was not
conversant with the management of business and after the death of her husband
she reposed full confidence in Badrinarayan who assured her that he would
properly look after her affairs, business and property and consequently
Badrinarayan took over the management of the estate and the account books and
also looked after court work. At his instance she (the respondent) signed
certain papers without understanding them or without knowing their contents and
sometimes she even signed blank papers. The appellant and his father
Badrinarayan then attempted to oust her from the business and the estate of her
husband which led to disputes between the parties and proceedings under ss.107
& 145 of the Code of Criminal Procedure were started, a receiver was
appointed and the Magistrate by an order dated May 19, 1947, directed the
parties to have their rights decided by a civil court. This order was
unsuccessfully challenged by the appellant in revision. In the criminal case
the appellant, it is 702 alleged, asserted that he had been adopted by
Lakshminarain six months prior to his death, a fact which the respondent
Chaltibai denied in her plaint.
On these pleadings the court framed four
issues and the two relevant issues for the purpose of this appeal are :
(1)Did the deceased Lakshminarayan validly
adopt the defendant No. 2 in the bright fortnight of Jyestha (June), 1935 A. D.
? (b) Was the adoption valid according to law ? (2) Had the plaintiff all along
recognised the adoption as valid and legal and had she been treating defendant
No. 2 as Lakshminarayan's son all along ? (b) If so, result ? The trial court
dismissed the suit. It held the adoption proved but found against the appellant
on the question of estoppel. The High Court on appeal reversed the finding as
to the factum of adoption but upheld the finding on the question of estoppel.
It was of the opinion that the respondent was not estopped on account of any
misrepresentation made by her and that there was no such conduct on her part
which deprived her of her right of bringing the present suit and that both
parties knew that there was no adoption in fact. The appeal was therefore
allowed. The defendant Kishorilal has brought this appeal to this Court under a
certificate of the High Court and the judgment of the High Court is assailed on
Firstly, it was urged that the evidence
produced in support of the adoption proved that the appellant was adopted by
Lakshminarayan six months before his death. Secondly, the doctrine of estoppel
was relied upon, estoppel on the ground that the respondent Chaltibai had
represented in previous legal proceedings and in various ways by execution of
docu- ments and by her actions that the appellant was the adopted son of
Lakshminarayan. She had put him in possession as owner of all the estate of
Lakshminarayan, and had given up her own claim to heirship to his estate and as
a result of this conduct and representations made by the respondent the
appellant had 703 altered his possession (i) by being completely transplanted from
his real father's family into another family and (ii) by being deprived of his
share of the properties in his natural family. Thirdly, it was argued that
because of her admission that the appellant was the adopted son of
Lakshminarayan and his heir the burden was on her to show that he was not the
adopted son. And fourthly, it was submitted that having regard to the long
course of conduct of the respondent Chaltibai in treating the appellant as the
adopted son of Lakshminarayan the evidence produced should be appraised in such
a manner as to hold it sufficient for proving the adoption.
There is no formal deed of adoption, the
appellant therefore sought to prove it by the evidence of six witnesses who
were. his real brother Mohanlal, his natural father Badrinarayan and two
relations Narsingdas and Shankarlal, a neighbour Chattarpatti who is some kind
of a physician and Kishorilal himself appeared in support of his case. A
seventh witness Sobharam was produced to prove an admission by Lakshminarayan
that he had adopted the appellant. The story of the adoption as disclosed by
the evidence for the appellant was that as Lakshminarayan had no son of his own
he asked his brother Badrinarayan to give his youngest son in adoption to which
he agreed and the adoption took place at the house of Lakshminarayan at Tirori
in the month of Jyaistha 1935 about six months before the death of
Lakshminarayan. The formalities of adoption, according to this evidence,
consisted of placing the appellant as a son not in lap of the adoptive mother
but of Lakshminarayan who put a tilak on the appellant's forehead and tied a
turban on his head. This was followed by distribution of pansupari to the
persons assembled who were Narasingdas and Shankarlal who were from outside
Tirora, Raman and Jivan Singh who were servants of Lakshminarayan, Chhatarpatti
a neighbour and Bhaiyalal who has not been examined and there was also present
Mohanlal a real brother of the appellant. Some other persons were also present
by the appellant but they are not witnesses in the case and Badrinarayan and
Mohanlal did 704 not mention their presence. No religious ceremony was
performed and there was no priest though witness Narsingdas stated that a
priest was present at the adoption ceremony and ganesh puja was performed. The
evidence also shows that no invitations were sent to the brotherhood, friends
or relations and besides the persons mentioned above no one else was present
and thus no publicity was given to the adoption. None of the relations of the
respondent were invited or were present although she had brothers and sisters
and they were married. Even the respondent Chaltibai was not present at the
ceremony of adoption. It is stated that she was in some inner room. And after
the formalities of adoption Lakshminarayan himself put the adopted son in the
lap of the respondent Chaltibai. The adoption was not followed by any feast nor
was any photograph taken and no presents were given to the adopted son.
Lakshminarayan did not consult any priest as is usual for fixing an auspicious
day for adoption. Although the defendants were allowed to amend their written
statement they gave no details of the adoption by Lakshminarayan beyond saying
that it was in the month of Jyaistha 1935 but what date it was not mentioned. The
parties are Aggarwals and belong to a commercial community who maintain
complete and detailed accounts. Although Badrinarayan who was defendant No. 1
chose to put in accounts of January 20, 1936, in connection with what he
expended on the tervi (thirteenth) day ceremony after the death of
Lakshminarayan yet he filed no such accounts showing the date when he and his
son the appellant came to Tirora from Raipur for the purposes of adoption or
when they went back. No contemporary document of any kind has been produced to
show when the adoption took place or what was expended by Badrinarayan nor have
the accounts of Lakshminarayan who ac- cording to the appellant himself
maintained account books been produced to show as to the expenses of whatever
little ceremony was observed on the date of the adoption. The account produced
by Badrinarayan shows the amount expended on the occasion of 705 thirteenth day
ceremony after the death of Lakshminarayan on betel leaves, milk, betelnuts and
also what was paid at the house of Lakshminarayan including the amount paid for
the turban for the reading of the garud puran or what was paid to Kesu (which
we are told is a pet name of Kishorilal) for touching the feet of the elders.
The significance of this fact has not been explained by the appellant.
I As an adoption results in changing the
course of succession, depriving wives and daughters of their rights and
transferring properties to comparative strangers or more remote relations it is
necessary that the evidence to support it should be such that it is free from
all suspicion of fraud and so consistent and probable as to leave DO occasion
for doubting its truth. Failure to produce accounts, in circumstances such as
have been proved in the present case, would be a very suspicious circumstance.
The importance of accounts was emphasised by the Privy Council in Sootrugun v.
Sabitra (1) ; in Diwakar Rao v. Chandanlal Rao (2) ; in Kishorilal v. Chunilal
(3); in Lal Kunwar v.
Charanji Lal (4) and in Padamlal v. Fakira
The oral evidence of witnesses deposing to
the factum of adoption is both insufficient and contradictory. Beyond their
being agreed on the question of taking the appellant in adoption by
Lakshminarayan the witnesses are not in accord as to the details of the adoption
or as to the ceremonies or as to the usual feast following it. The giving of
presents is the only detail on which they are agreed, they all deposed that no
presents were given. As to what happened in regard to the taking of the
appellant in her lap by the respondent after the death of Lakshminarayan the
witnesses are not in accord. There is disagreement as to its date how it came
about and why. The adoption during the lifetime of Lakshminarayan is
contradicted by a document dated January 24, 1938, a sale deed by the
respondent Chaltibai in favour of the (1) (1834) 2 Knapp. 287. (2) (1916)
I.L.R. 44 Calcutta 201 (P.C.).
(3) (1908) 36 I.A. 9. (4) (1909) 37 I.A. 1,
(5)A.I.R. 193, (P.C.) 84.
89 706 Firm Ganeshram Fatteh Chand the family
firm of witness Narsingdas. Therein the adoption of the appellant is stated to
have taken place after the death of Lakshminarayan and was by (Chaltibai
respondent under the authority of her deceased husband and with the consent of
the whole family.
This document was witnessed by the natural
father Badrinarayan. No satisfactory explanation of this wholly different
adoption being mentioned in a deed executed only two years after the death of
Lakshminarayan has been given by the appellant, except this that whether he was
adopted by Lakshminarayan in his lifetime or after his death by the respondent
Chaltibai, he would be the adopted son of Lakshminarayan and therefore this
discrepant recital in the sale deed was of little consequence. This argument
ignores the case set up by the appellant in his written statement and the utter
lack of evidence of the authority of the husband or of the assent of his
kinsmen which was neither pleaded nor proved. Another circumstance which casts
a great deal of doubt on the adoption set up by the appellant is that after the
adoption the appellant went back to Raipur where his natural father was
residing. Although Badrinarayan stated that after the adoption the appellant
lived with his adoptive father, this is negatived by the evidence produced by
the appellant himself which is to the effect that he went back to school at
Raipur and returned to Tirora on the day Lakshminarayan died. The High Court
also found that he left for Raipur after the obsequies and returned three or
four months later. The school leaving certificate shows that he was a student
in the school at Tirora from June 22, 1936 to June 30, 1937, and there he was
entered as the son of Badrinarayan. Taking all these facts into consideration
the High Court, in our opinion, has cor- rectly held that the factum of
adoption by Lakshminarayan has not been established.
It was next argued on behalf of the appellant
that even though the evidence produced in support of the adoption might be
unsatisfactory and not sufficient to establish the factum of adoption the
respondent in this 707 case was estopped from setting up the true facts of the
case inasmuch as she represented in the former document and legal proceedings
and in various other ways that the appellant was the adopted son of the deceased
Lakshminarayan and thereby caused him to change his position by being
transferred from the family of Badrinarayan to that of Lakshminarayan. These
documents will be discussed later. In this case both the parties were aware of
the truth of the facts and consequently the doctrine of estoppel was
inapplicable. It cannot be said that the respondent by her own words or conduct
wail fully caused the appellant to believe the existence of a certain state of
things i.e. adoption by Lakshminarayan and induced him to act on that belief so
as to alter his position and therefore she could not be concluded from averring
a different state of things as existing at the same time. See Pickard v. Sear
(1) and Square v. Square (2 ). The Privy Council in Mohori Bibi v.
Dhurmdas Ghogh (3 ) held that there can be no
estoppel where the truth of the matter is known to both the parties.
Therefore when both the parties are equally
conversant with the true facts the doctrine of estoppel is inapplicable.
The documents giving rise to the plea of
estoppel were four and the appellant also relied on the acts of the respondent
which will be referred to later. The first document was an application dated
March 21, 1936, for a succession certificate which was filed by the respondent
as " guardian mother " of the appellant Kishorilal. The necessity for
this application arose because in order to get insurance money on a policy
taken out by the deceased Lakshminarayan a succession certificate had to be
obtained. The High Court came to the conclusion that there was no evidence to
show that the respondent Chaltibai's signatures were obtained on the document
after it was explained to her, the document was in English and she was not
conversant with that language.
Two other drafts were made for the
application for this succession certificate which (1) (1837) 6 AD. & E.
469; (1837) 112 E.R. 179.
(2)  P. 120.
(3) (1902) 30 I.A. 114.
708 are both on the record. In these two
drafts Badrinarayan is shown as " guardian uncle " of the appellant
Although Badrinarayan was reluctant to do so
he had to admit the existence of these two drafts but added that he had
instructed Jivan Singh a servant of Lakshminarayan not to file the application
till after he had consulted a Mr. P. S.
Deo, a pleader and after he had consulted him
the application was filed but with Chaltibai as guardian. This document in
para. 3 sets out the names of the relations of the deceased. They were the
widow Chaltibai, the daughter Jamnabai, the brother Badrinarayan and the four
sons of Badrinarayan. In this column the appellant Kishorilal was not shown as
a relative of the deceased. In a later paragraph it was stated that the
petitioner i. e. the appellant Kishorilal claimed the certificate as the
adopted son of the deceased Lakshminarayan. On the finding of the High Court
that the document was not explained to the respondent Chaltibai it cannot be
said that it established any admission, much less estoppel. This document did
not contain any admission which would necessarily show -that Kishorilal
appellant was adopted by Lakshminarayan during his lifetime.
The next document relied upon is a bahi entry
in a Mathura Panda's book dated July 21, 1944. The story is that the respondent
Chaltibai visited Mathura on her way back from Badrinarayan and the Panda of
the family made an entry in his bahi after making enquiries from her showing
the appellant Kishorilal as the adopted son. The entry is signed by her. This
document is contradicted by another entry in the same Panda's bahi which is
stated to have been made at the instance of Mohanlal, the eldest brother of the
appellant on March 2, 1947, about 2-1/2 years after the pre- vious entry. In
the later entry the appellant Kishorilal was shown as the son of Badrinarayan
and not the adopted son of Lakshminarayan. Whether the document-the previous
Bahi entry-was at the instance of the respondent Chaltibai or not is not
material because it does not advance the case of the appellant. This document
also does not show that the appellant 709 was adopted by Lakshminarayan. Then
there is a document adhikar patra dated May 4, 1946, by which a dispute between
the appellant and the respondent was referred to the arbitration of 7 persons.
It was signed by the appellant and the respondent and it was therein recited:
" Relations between us mother and son
have become strained in connection with some matters. it is very necessary to
remove the same".
In another portion of the document also words
used are "between us the mother and the son". This document also was
not accepted by the High Court as containing an admission because even at the
time of its execution the respondent Chaltibai was denying the adoption of
Kishorilal which was proved by the testimony of two of the panches
(arbitrators) themselves. It cannot be said therefore that this document
represented correct state of affairs but even if it did it cannot be treated as
an admission by the respondent that the appellant was adopted by
Lastly there is the deed of sale dated January
24, 1938, wherein the respondent had recited that the appellant Kishorilal was
adopted by her husband ,in accordance with his wishes and consent of the entire
family ". This recital negatives the whole case of the appellant as set up
in his written statement that he was adopted by Lakshminarayan during his
lifetime. In his written statement he bad only pleaded his having been placed
in the lap of the respondent Chaltibai as confirmatory of his adoption by
The documents mentioned above do not support
the plea that the appellant had been led. to alter his position through a
belief in any misrepresentation made by the respondent Chaltibai as to his
having been adopted by Lakshminarayan.
And he cannot be allowed to set up a case
different to his case in the written statement nor can he be allowed to prove
his title as an adopted son on such different case. See Tayammaul v.
Sashachalla Naiker (1), Gopeelal v. Mussamat Chandraolee Buhajee (2 ). The
correct rule of estoppel applicable in the case of adoption is that it (1)
(1865) 10 M.I.A. 429.
(2) (1872) SUPP. I.A. 131.
710 does not confer status. It shuts out the
mouth of certain persons if they try to deny the adoption, but where both
parties are equally conversant with the true state of facts this doctrine has
no application. Two further facts which the appellant's counsel relied upon to
support his plea of estoppel were: (1) his being allowed to perform the
obsequies of Lakshminarayan and (2) the performance of his marriage by the
respondent Chaltibai as his adoptive mother.
If the adoption itself is disproved these two
facts will not add to the efficacy of the plea of estoppel which otherwise is
inapplicable: Dhanraj v. Sonabai (1). The appellant relied on Rani Dharam
Kunwar v. Balwant Singh (2) which was a case where the adoptive mother, the
Rani had herself in a previous proceeding pleaded that she had authority to
adopt and the Privy Council were of the opinion that the question could be
decided on its own facts without recourse to the doctrine of estoppel, although
they did not differ from the view of the courts below as to the applicability
of the doctrine of estoppel. That was not a case of the parties being equally
conversant with the true facts and further there was a finding that the person
claiming to be the adopted son was as a matter of fact adopted. In our view
there is no substance in the plea of estoppel raised by the appellant.
Whatever the acts of the respondent
Chaltibai, what. ever her admissions and whatever the course of conduct she
pursued qua the appellant Kishorilal they could not amount to estoppel as both
parties were equally conversant with the true facts. In none of the four
documents which are signed by her, is there any admission that Kishorilal was
adopted by her husband during his lifetime. On the other hand in the sale deed
dated January 24, 1938, she recited an adoption by herself which is not the
adoption that the appellant relied upon in support of his case. The other
documents i. e. the application for succession certificate and the arbitration
agreement and the entry in the Panda's bahi are all consistent with the recital
in the sale deed and do not establish the case (1) (1925) 52 I.A. 231, 243.
(2) (1912) 39 I.A. 142, 148.
711 of the appellant as to the adoption by
It was then argued for the appellant that the
course of conduct of the respondent and her various acts of admission and the
treatment of the appellant as an adopted son by the respondent and other
members of the family gave rise to a strong inference that he (the appellant)
was adopted as aleged by him and the evidence should have been so appraised as
to support that inference. Particular emphasis was placed by counsel for the
appellant on the fact that soon after the death of Lakshminarayan it was given
out that the appellant was his adopted son and this assertion was continuously
made in many transactions and documents. These documents, the course of conduct
of Chaltibai respondent in treating the appellant as the adopted son of
Lakshminarayan and the length of the appellant's possession of Lakskminarayan's
estate, it was contended, showed that he was the adopted son of Lakshminarayan.
It was also submit- ted that the admissions shifted the onus on to the
respondent on the principle that what a party himself admits to be true may
reasonably be presumed to be so and until the presumption was rebutted, the
fact admitted must be taken to be established: Chandra Kunwar v. Narpat Singh
(1). The question of onus loses its efficacy because it was never objected to
in the courts below and evidence having been led by the parties, at this stage
the court has to adjudicate on the material before it. And admissions are not
conclusive, and unless they constitute estoppel, the maker is at liberty to
prove that they were mistaken or were untrue: Trinidad Asphalt Company v.
Coryat (2). Admissions are mere pieces of evidence and if the truth of the
matter is known to both parties the principle stated in Chandra Kunwar's case
(1) would be inapplicable. And in this case there is no admission by the
respondent of the appellant's adoption by her husband in his lifetime. Such
admissions that there are cannot help the case of the appellant or support a
different appraisal of the evidence of the factum of (1) (1906) 34 1. A. 27.
(2)  A. C. 587.
712 adoption or establish an adoption which
is otherwise disproved.
In order to properly appreciate the effect of
these admissions it is necessary to consider the circumstances under which
these various documents were executed and the acts done or the admissions made.
At the death of Lakshminarayan the respondent was 24 or 25 years old surrounded
by the family of Badrinarayan whose interest it was to foist an adoption on
her. Her own relations do not seem to have taken much interest in her or her
affairs. She was thus a widow, lonely and dependent upon her husband's
relations. The trial Court described her as a pardanashin woman. Although
Badrinarayan himself denied that he was managing the estate of Lakshminarayan,
Narsingdas one of the appellant's witnesses stated that Badrinarayan was doing
so and Badrinarayan admitted that he looked after the court cases though at the
request of the respondent. It is with this back. ground that the evidence has to
be considered and weighed. Any admission made by a widow situated as the
respondent was would necessarily carry very little weight:
Padamlal v. Fakira Debya (1).
Besides the four documents above mentioned
the appellant Kishorilal relied on the following facts as instances of
admissions and conduct of the respondent Chaltibai. The first is the
performance of obsequies by the appellant and the subsequent taking of the
appellant in her lap by the respondent. The mere fact of performance of these
funeral rites does not necessarily support an adoption. The performance of
these rites frequently varies according to the circumstances of each case and
the view and usage of different families. The evidence led by the appellant
him- self shows that in the absence of the son, junior relations like a younger
brother or a younger nephew performs the obsequial ceremonies. As was pointed
out by the Privy Council in Tayamal's case (2) the performance of funeral rites
will not sustain an adoption unless it clearly appears that the adoption itself
was performed under circumstances as would render it (1) A.I.R. 1931 (P.C.) 84.
(2) (1865) 10 M.I.A. 429.
713 perfectly valid. But then it was
submitted that the taking by the respondent of the appellant in her lap coupled
with the performance of obsequies was a clear proof of her acceptance of the
appellant's adoption by her deceased husband. This again is slender basis for
any such inference as Badrinarayan himself stated that it was not customary
amongst them for the widow to take the adopted son in her lap and in this
particular case it was only done as she desired it. As proof of adoption by
Lakshminarayan this piece of evidence has no value because that is not the case
of the appellant; and as showing confirmatory process it is valueless in the
absence of evidence sufficient to establish the adoption by Lakshminarayan
which in this case is lacking.
The appellant's residing with Lakshminarayan
after his adoption and after the death of Lakshminarayan with the respondent
was next relied upon by counsel for the appellant As we have already said the
appellant had not proved that he was residing with Lakshminarayan after his
adoption; on the contrary the evidence shows that he left Tirora soon after his
alleged adoption and did not return till after the death of Lakshminarayan. And
then again he returned to Raipur and returned to Tirora after about four or
five months. The mere fact that he continued to reside with the respondent
since would not in this case prove adoption, because in the school register he
was shown as the son of Badrinarayan and continued to be so shown upto June 30,
1937, and mere residence of a young nephew with a widowed and young aunt is no
proof of adoption by her husband in the absence of satisfactory evidence of the
factum of adoption.
The appellant, it was next contended, was in
possession of the properties of Lakshminarayan after the latter's death and his
name was brought on the record in all civil and revenue proceedings. As we have
said above, Badrinarayan took over the management of the estate of
Lakshminarayan and was looking after the conduct of the court cases. If in
those circumstances the mutations were made in the name of the 90 714 appellant
or suits were brought in his, name or even if he took out licences in his name
would be matters of small consequence. It is not shown that at the time of the
mutations the respondent was present or was represented or the suits were
brought with her knowledge and it appears that all this was done because the management
of the estate as well as the conduct of the cases in courts was in the hands of
Badrinarayan. Then the fact that after he attained majority, the appellant was
managing the estate and was recognised by everybody as its owner also is of
little consequence because as far as the respondent was concerned somebody had
to manage the property, whether it was Badrinarayan or the appellant Kishorilal
to her it made no difference. It may also be mentioned here that in the
mutation order passed by the Tehsildar on April 8, 1936, which related to 3As.
share of Mouza Jabartola the mutation entry was made in favour of the
respondent and not in the name of the appellant and in the jamabandi papers
relating to different holdings in some places the appellant is shown under the
guardianship of his mother Chaltibai and in other places under the guardianship
of Badrinarayan as his uncle.
A great deal of stress was laid by the
appellant on the fact that his marriage was performed by the respondent
Chaltibai and she purported to do so as his adoptive mother. The performance of
the marriage itself does not prove adoption, which is otherwise disproved, and
as a circumstance supporting the inference of adoption set up by the appellant
it is wholly neutral.
At the most the circumstances relied upon by
the appellant may be acts of acquiescence attributed to the respondent but they
would be important only if they were brought to bear upon the question which
depended upon preponderance of evidence. If the facts are once ascertained,
presumption arising from conduct cannot establish a right which the facts
themselves disprove: See Tayamal's case (1) at p. 433.
Presumptions cannot sustain an adoption even
though (1)(1865) 10 M.I.A. 429.
715 it might have been acquiesced in by all concerned
when as in the present case, the evidence shows that the adoption did not take
place. Another fact on which the appellant relied was that on October 30, 1933, Badrinarayan, his wife and his sons partitioned their family property.
That is not an act of the respondent and cannot affect her rights if they are
On the whole we are of the opinion that the
judgment of the High Court is sound and that this appeal should be dismissed