Debi Prasad Vs. Tribeni Devi & Ors
[1970] INSC 68 (18 March 1970)
18/03/1970 HEGDE, K.S.
HEGDE, K.S.
SHAH, J.C.
CITATION: 1970 AIR 1286 1971 SCR (1) 101 1970
SCC (1) 677
ACT:
Hindu Law--Adoption--Burden of Proof.
HEADNOTE:
The appellant filed a suit in 1946 claiming
to be the nearest heir to his maternal uncle-G, who died in 1934.
S--defendant no. 1 (the predecessor of the
respondents) resisted the suit on the ground that he had been adopted by G on
the very day he was born in 1892. Close relations of the wife of G deposed that
after the birth of S, the wife of G took him to her paternal home where Paon
Pheri ceremony was performed, as was customary in that family. The application
for admission to the school recited that S was the son of G, and it was signed
by G. G deposed before courts that S was his son. S filed a nomination paper,
proposed by G mentioning that his father was G. In incometax assessment which
proceeded on the basis that G and S formed a H.U.F. of which G was the karta,
the professional income of S was added. Then there were admissions of the
appellant in Courts after the death of G that S was the proprietor of the firm
of G. In other application for transfers, the appellant described S as son of
G. But there was a decree of a Court in 1990 where S was described as son of
his natural father. The trial court decreed the suit, butthe High Court
reversed that decree. The High Court held on the evidence that S was validly
adopted by G, though S had not been able to establish the custom pleaded by
him, nor was he able to adduce any satisfactory evidence about the actual
adoption but he has produced considerable documentary evidence to show that G
was treating him for over a quarter of century as his son; then there was also
plenty of reliable evidence to show that close relations including the,
appellant treated S as the son of G both during the life time of G and also,
thereafter till about the time the suit was instituted.
HELD : A person who seeks to displace the
natural succession to property by alleging an adoption must discharge the
burden that lies upon him by proof of the factum of adoption and its validity.
In order that an adoption may be valid under the Hindu law, there must be a
formal ceremony of giving and taking. This is true of the regenerate castes as
well as of the Sudras. Although no particular form is prescribed for the
ceremony, the law required that the natural parent should hand over the
adoptive boy and the adoptive parent must receive him, the nature of the
ceremony varying according to the circumstances. [105 A-D] Although the person
who pleads that he had been adopted is bound to prove his title as adopted son,
as a fact yet from the long period during which he had been received as an
adopted son, every 'allowance for the absence of evidence to prove such fact
was to be favourably entertained. The case was analogous to that in which the
legitimacy of a person in possession had been acquiesced in for a considerable
time, and afterwards impeached by a party, who had a right to question the
legitimacy, where the defendant, in order to defend his status, is allowed to
invoke against the claimant every presumption which arises from long
recognition of his 102 legitimacy by members of his family. In the case of a
Hindu long recognition as an adopted son, raised even a stronger presumption in
favour of the validity of his adoption, arising from the possibility of the
loss of his rights in his own family by being adopted in another family. In the
absence of direct evidence much value has to be attached to the fact that the
alleged adopted son had without controversy succeeded to his adoptive 'father's
estate and enjoyed till his death and that documents during his life and after
his death were framed upon the basis of the adoption. [106 B-F] On the
evidence, S was the adopted son of G and there was nothing to show that the
said adoption was invalid for any reason. While considering the question of the
proof of adoption pleaded, the 'fact that the suit was filed nearly 54 years
after the alleged adoption had taken place must be borne in mind. Therefore,
naturally it was extremely difficult far the adopted son to adduce any oral
evidence in proof of that adoption.
Addagada Raghavamma and anr. v. Addagada
Chenchamma and anr. 2 S.C.R. 933; Lakshman Singh Kothari v. Smt. Rup Kanwar
[1962] 1 S.C.R. 477; applied.
Rajendrao Nath Holder v. Jogendro Nath
Banerjee and ors. 14, Moore's Indian Appeals p. 67, approved.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 707 of 1966.
Appeal by special leave from the judgment and
order dated January 20, 1965 of the Allahabad High Court, Lucknow Bench in
First Appeal No. 67 of 1948.
V. S. Desai and K. P. Gupta, for the
appellant.
A. K. Sen, E. C. Agarwala, S. R. Agarwala and
P. C. Agarwala, for respondent Nos. 1 to 6.
The Judgment of the Court was delivered by
Hegde, J.-In this appeal by special leave though number of contentions were
taken we have not thought it necessary to go into all of them as in our
judgment High Court's conclusion that Shyam Behari Lal (1st defendant) had been
validly adopted by Gopal Das ,is well founded.
The suit from which this appeal arises is for
possession of the suit properties on the basis of title. The 1st plaintiff Debi
Prasad claims title to the properties as the nearest heir to Gopal Das, his
maternal uncle who died in 1934. The 2nd plaintiff is an alienee from the 1st
plaintiff.
In order to properly understand the
controversy in the present case, it is necessary to have before us the family
pedigree. The admitted pedigree is as shown below 103 LAJJA RAM Kooramal (died
in 1874) --------------------------------------------------Kedar Nath Hiralal
(died Laddoomal Ramass (died in 1897) during his (died -------------father's
life issueless time) in 1871) ------------------------(1St wife (2nd wife) died
in Dwaramal 1874) alias Shyam Behari Dwarkadas Mantoo Mal Lal (died in (died in
(adopted by 1885) 1897) at Gopal Das) age 25 or 27. deft. No. 1 (other
children, died during minority).
----------------------------Changumal Smt.
Misro Smt. Kaushilla died in 1923 (died in 1917) (dead)
------------------------------------Smt.Raj Rani Shanker Sahai Manohar Das
(died childless (died in (alive) 1944 or 1945) 1929)
---------------------------------------------Smt. Radhey Rani Smt. Drupati
Mukut Behari ---Lal ---(Deft. No. 2) Govind Prasad Ram Kumar Ram Swarup
---------------------------------Mahesh Bebari Ram Prasad (Deft. No. 3) (Deft.
No. 4) (Four other children died 1940-41) Gopal Das Smt. Kundan Smt. Shyamo
Masani Din (died on (died in (died in (died issueless) 18-2-34) 1914) 1923 or
1904) --------------------------------------Smt. Bhagwan Baghumal Kedar Nath
Del (died in 1932) (died in 1925) (died on 19-10-1934) Debi Prasad Plff. No. 1
------------------------------Minor son Minor Minor daughter (all died before
1890) 104 The common ancestor of the family was Lajja Ram who died in 1874. We
are now concerned with the branch of Kedar Nath, the father of Gopal Das who
died on February 18, 1934. His widow Bhagwan Dei died on October 19, 1934. The
contention of Debi Prasad is that Gopal Das had separated from his family; he
died intestate and, therefore, being the nearest heir of Gopal Das, he is
entitled to the properties left by Gopal Das. The plaintiffs claim was resisted
by the 1st defendant Shyam Behari Lai, who claimed to be the adopted son of
Gopal Das. According to Shyam Behari Lai, he had been adopted by Gopal Das in
about the year 1892 when he was only an infant. He also resisted the suit on
the ground that Gopal Das was an undivided member of his family and therefore
the 1st plaintiff in any event cannot claim any right to the suit properties.
His further contention was that the 1st plaintiff was estopped from contending
that he was not the adopted son of Gopal Das. Shyam Behari Lai died during the
pendency of the appeal before the High Court and his legal representatives are
contesting this appeal Debi Prasad also died during the pendency of this
appeal. The trial court substantially accepted the claim made in the plaint but
in appeal the High Court reversed the decree of the trial court and dismissed
the suit.
The principal question that we have to decide
in this case is whether the adoption pleaded by Shyam Behari Lai is true and
valid. According to Shyam Behari Lai, Gopal Das took him in adoption on
February 8, 1892, on the very day he was born. He says that very soon after his
birth, his natural parents handed him over to Gopal Das and his wife who took
him over as their adopted son and thereafter performed the necessary ceremonies
according to the custom of their community. He also pleaded that in the
community of Gopal Das, there is a custom of taking a child. in adoption on the
very day of its birth. The plaintiffs have denied both the factum of adoption
as well as the custom pleaded.
We may at the very outset mention that Shyam
Behari Lai had not been able to establish the custom pleaded by him. Nor was he
able to adduce any satisfactory evidence about the actual adoption but hehas
produced considerable documentary evidence to show that (Gopal Das) was
treating him for over a quarter of century as his son. There is also plenty of
reliable evidence to show that close relations of Gopal Das including Debi
Prasad treated Shyam Behari Lai as the son of Gopal Das both during the life
time of Gopal Das and also thereafter till about the time the suit from which
this appeal arises was instituted. As mentioned earlier Gopal Das as well as
his wife died in 1934 and the suit from which this appeal arises was filed in
1946.
105 While considering the question of proof
of the adoption pleaded, we must bear in mind the fact that the same is alleged
to have taken place in 1892 nearly 54 years before the present suit was
instituted. Therefore, naturally, it was extremely difficult for Shyam Behari
Lai to adduce any oral evidence in proof of that adoption. All the persons who
could have known about the adoption are likely to have died. Shyam Behari Lai
himself could not speak to that adoption. His evidence is at best hearsay. It
is true, as observed by this Court in Addagada Raghayamma and anr. v. Addagada
Chenchamma and anr. (1) that it is settled that (a person. who seeks to
displace the natural succession to property by alleging an adoption must
discharge the burden that lies upon him by proof of the factum of adoption and
its validity). Again as held by this Court in Lakshman Singh Kothari v. Smt.
Rup Kanwar(2) that in order that an adoption may be valid under the Hindu law,
there must be a formal ceremony of giving and taking. This is true of the
regenerate castes as well as of the Sudras. Although no particular form is
prescribed for the ceremony, the law requires that the natural parent should
hand over the adoptive boy and the adoptive parent must receive him, the nature
of the ceremony varying according to the circumstances. In the course of the
judgment Subba Rao J.
(as he then was) who spoke for the, Court
quoted with approval the following observations of Gopalchandra Sarkar in his
book on Hindu Law, 8th Edn.;
"The ceremonies of giving and taking are
absolutely necessary 'in all cases. These ceremonies must be accompanied by the
actual delivery of the child; symbolical or constructive delivery by the mere
parol expression of intention on the part of the giver and the taker without
the presence of the boy is not sufficient. Nor are deeds of gift and acceptance
executed and registered in anticipation of the intended adoption nor
acknowledgment, sufficient by themselves to constitute legal adoption, in the
absence of actual gift and acceptance accompanied by actual delivery; a formal
ceremony being essential for that purpose." That is also the view
expressed in Mayne's Hindu Law wherein it is observed that-the giving and
receiving are absolutely necessary to the validity of an adoption; they are the
operative part of the ceremony, being that part of it which transfers the boy
from one family to another; but the Hindu law does not require that there shall
be any particular form so far as giving and acceptance are concerned; for a
valid, adoption all that the law requires is that the natural father shall be
asked by the adoptive (1) [1964] 2 S.C.R. 933.
L11SupCI-8 (2) [1962] 1 S.C.R. 477.
106 parent to give his son in adoption, and
that the boy shall be handed over and taken for this purpose.
There is no doubt that the burden of proving
satisfactorily that he was given by his natural father and received by Gopal
Das as his adoptive son is on Shyam Behari Lal. But as observed by the Judicial
Committee of the Privy Council in Rajendrao Nath Holder v. Jogendro Nath
Benerjee and ors.(1); that although the person who pleads that he had been
adopted is bound to prove his title as adopted son, as a fact yet from the long
period during which he had been received as an adopted son, every allowance for
the absence of evidence to prove such fact was to be favourably entertained,
and that the case was analogous to that in which the legitimacy of a person in
possession had been acquiesced in for a considerable time, and afterwards impeached
by a party, who had a right to question the legitimacy, where the defendant, in
order to defend his status, is allowed to invoke against the claimant every
presumption which arises from long recognition of his legitimacy by members of
his family; that in the case of a Hindoo, long recognition as an adopted son,
raised even a stronger presumption in favour of the validity of. his adoption,
arising from the possibility of the loss of his rights in his own family by
being adopted in another family. In Rup Narain and anr. v. Mst. Gopal Devi and
ors. (1), the Judicial Committee observed, that in the absence of direct
evidence much value has to be attached to the fact that the alleged adopted son
had without controversy succeeded to his adoptive father's estate and enjoyed
till his death and that documents during his life and after his death were
framed upon the basis of the adoption. A Division Bench of the Orissa High
Court in Balinki Padhano and anr. v.
Gopalkrishntt Padhano and ors(3); held that
in the case of an ancient adoption evidence showing that the boy was treated
for a long time as the adopted son at a time when there was no controversy is
sufficient to prove the adoption although evidence of actual giving and taking
is not forthcoming. We are in agreement with the views expressed in the
decisions referred to above.
In the case of all ancient transactions, it
is but natural that positive oral evidence will be lacking. Passage of time
gradually wipes out such evidence. Human affairs often have to be judged on the
basis of probabilities. Rendering of justice will become impossible if a
particular mode of proof is insisted upon under all circumstances. In judging
whether an adoption pleaded has been satisfactorily proved or not, we have to
bear in mind the lapse of time between the date of the alleged adoption and the
date on which the concerned party is required to adduce proof. In the (1) 14
Moore's Indian Appeals p.67.
(2) 36 I.A. p. 103.
(3) A.I.R. 1964 Orissa p. 117.
107 case of an adoption said to have taken
place years before the same is questioned, the most important evidence is
likely to be that the alleged adoptive, father held out the person claiming to
have been adopted as his son; the latter treated the former as his father and
their relations and friends treated them as father and son. There is no
predetermined way of proving any fact. A fact is said to have been proved where
after considering the matters before it, the court either believes it to exist
or considers its existence so probable that a prudent man ought, under the
circumstances of the particular case, to act upon the supposition that it
exists. Hence if after taking an overall view of the evidence adduced in the
case, we are satisfied that the adoption pleaded is true, we must necessarily
proceed on the basis, in the absence of any evidence to the contrary, that it
is a valid adoption as well.
As mentioned earlier Shyam Behari Lal has not
been able to substantiate the custom pleaded by him; nor has he adduced any
direct evidence relating to the factum of adoption. His case entirely rests
upon the decumentary evidence that he has produced to show that he had been
consistently and continuously treated as the son of Gopal Das, by Gopal Das
himself, during his life time and by all his friends and relations including
Debi Prasad.
Before dealing with the evidence mentioned
earlier, it is necessary to mention that the High Court has relied in proof of
the adoption pleaded, on the evidence of D.W. 10 Rikhab Das and D.W. 15 Chhotey
Lal. Both of them were the close relations of the wife of Gopal Das. They are
disinterested witnesses. Their evidence is to the effect that sometime after
the birth of Shyam Behari Lal, the wife of Gopal Das took him to her paternal
home where Paon Pheri ceremony was performed. There is satisfactory evidence to
show that this ceremony is customarily performed in the parental home of a lady
who has given birth to her first child. We see no reason to disbelieve the
testimony of these witnesses.
Their evidence clearly indicates the fact
that Shyam Behari Lal must have been taken in adoption by Gopal Das. We may
also at this stage refer to another important circumstance appearing in the
case. As mentioned earlier, both Gopal Das and his wife died in the year 1934.
The suit from which this appeal arises was instituted only in 1946, just a few
months before the period of limitation for instituting the same expired. Debi
Prasad has not given any satisfactory explanation for this inordinate delay in
instituting the suit. This circumstance tends to show that the suit is likely
to be speculative one.
Now coming to the documentary,evidence
referred to earlier, it is proved that Shyam Behari Lal was admitted to school
in 1907. Exh. A-658, is the application made for admission on December 12,
1907. That application was signed by Gopal Das, 108 It recites that Shyam
Behari Lal is the son of Gopal Das.
This admission of Gopal Das is an extremely
important piece of evidence. No reason is given why Gopal Das should have made
a false statement in that application. The explanation that someone must have
filled in the form and Gopal Das must have signed the same in ignorance is not
worthy of credence.
Exh. A-261, is the certified copy of the
deposition of Gopal Das in Regular Suit No. 104 of 1917 in the court of the
Subordinate Judge, Faizabad. That deposition was given on May 9, 1918. Therein
Gopal Das admitted in more than one place that Shyam Behari Lal was his son. We
next come to Exh. A-364, a copy of the nomination paper filed by Shyam Behari
Lal for election to the municipal council. Gopal Das was one of the persons who
proposed his name. Therein again Shyam Behari Lal was described as the son of
Gopal Das.
Gopal Das was an income-tax assessee. He was
assessed as the Karta of his Hindu Undivided Family. Exh. A-299 is the
assessment order for the year 1921-22; Exh. A-300 is the assessment order for
the year 1922-23; Exh. A-3-01 is the assessment order for the year 1923-24;
Exh. A-302 is the assessment order for the year 1924-25; Exh. A-303 is the
assessment order for the year 1925-26; Exh. A-304 is the assessment order for
the year 1926-27; Exh. A-305 is the assessment order for the year 192728; Exh.
A-306 is the assessment order for the year 1928-29; Exh. A-307 is the
assessment order for the year 1929-30; Exh. A-309 is the assessment order for
the year 1931-32 and Exh. A313 is the assessment order for the year 1935-36.
While computing the income of the H.U.F. the professional income of Shyarn
Behari Lal as a lawyer was taken into consideration. Those assessment orders
proceed on the basis that Gopal Das and Shyam Behari Lal constituted a joint
Hindu family. It may be noted that most of those assessment orders were made
during the life time of Gopal Das and evidently on the basis of the returns
submitted by him. If Shyam Behari Lai had not been the son of Gopal Das, he
could not have been treated as a member of the 'coparcenary of which Gopal Das
was the Karta, nor his professional income would have been added to the income
of the joint family of Gopal Das. These assessment orders have considerable
evidentiary value. It may be noted that these documents came into existence at
a time when there was no dispute.
Next we come to the admissions made by the
plaintiff himself. Exh. A-233 is the certified copy of the deposition of the
plaintiff given in Regular Suit No. 55 of 1935 in the court of Additional
Subordinate Judge, Faizabad. This deposition he 109 gave on May 20, 1935,
nearly a year after Gopal Das died.
Is that deposition he stated :
"I am partner of the firm of Gopal Dass
Chhangamal. Plaintiff No. 2 is the proprieter of the said firm", If Debi
Prasad was the rightful heir to the estate of Gopal Das, he could not have
admitted in the year 1935 that Shyam Behari Lal was the proprietor of the firm
Gopal Dass Chhangamal. Debi Prasad's explanation that on the date he gave that
deposition, he was unaware of the fact that he was the heir of Gopal Das,
cannot be believed. In Exh. A-226, the decree in the aforesaid suit, Shyam
Behari Lal was described-.as the son of Gopal Das. Exh. A-274 is another
certified copy of the deposition given by Debi Prasad. This was, given on July
19, 1923 in a suit where Gopal Das was the plaintiff. Therein he stated in
cross"The plaintiff No. 1 has got a son named B.
Shyam Behari Lal Vakil .... Our business is
also ancestral business. His son Shyam Behari and his grandson Mukut Behari are
members of a joint Hindu family." He further stated therein "Lala
Gopal Das, his son (referring to Shyam Behari Lal) and grandson are the sole
owners of the firm styled Kuramal Kedar Nath".
Exh. A-236 is the certified copy of the
plaint filed by Shyam Behari Lal and Debi Prasad jointly in Suit No. 353 of
1935 in the court of Civil Judge, Faizabad. In paragraph 1 of the plaint, it is
stated :
"The proprietor of the said shop was
Gopal Das, father of the plaintiff No. 1 till his life time and after his death
to which about a year, nine months and half have passed, the plaintiff No. 1,
as survivor became and is the proprietor of the said property." This is an
extremely important admission. This admission was made after the death of Gopal
Das. Therein Debi Prasad not only admitted that Shyam Behari Lal was the son of
Gopal Das, he further admitted that he became the proprietor of the concern by
survivorship. This could have only happened if Shyam Behari Lal had been
adopted by Gopal Das. Exhs. A-352 and 356 are two applications made for
registration of a firm under the Indian Partnership Act, 1932. The first,
application was made on March 26, 1936. It was returned 'with some objection
and the second application was made on May 4, 1936. Both these applications
bear the signature of Debi Pradsad as Well 110 as Shyam Behari Lal. In those
applications, it was stated that Shyam Behari Lal had succeeded as a partner of
the firm whose registration was sought in the place of his father Gopal Das who
had died. Exh. A-358 is an application for transfer of shares made to the Banaras
Cotton & Silk Mills Ltd. by Debi Prasad. Thereunder he sought to transfer
his 100 shares to Shyam Behari Lal whom he described in his application as the
son of Gopal Das. Similar avertments were made in Exh. A-359.
Exhs. A-262, 656, 657 and A-276 are the
statements made by the relations of Shyam Behari Lal and Debi Prasad wherein
Shyam Behari Lal was described as the, son of Gopal Das.
A large number of documents have been
produced to show that friends, relations and even strangers were treating Shyam
Behari Lal as the son of Gopal Das. The documents produced before the court
conclusively prove that right from 1907 till 1946, Shyam Behari Lal wag treated
as the son of Gopal Das. This continuous and consistent course of conduct on
the part of Debi Prasad, Gopal Das and others affords a satisfactory proof of
the fact that Shyam Behari Lal must have been the adopted son of Gopal Das. No
other reasonable inference can be drawn from the material on record.
Mr. Desai appearing on behalf of the
appellants contended that we should not accept the adoption pleaded firstly
because, it was unlikely that Gopal Das would have taken a child in adoption as
far back as 1892 when he was only 32 years of age; secondly the story that an
one day old child was taken in adoption when the family must have been in
pollution must be rejected as being repugnant to Hindu notions and lastly in a
decree of 1910, Shyam Behari Lal was described as the son of Ram Das, his
natural father. We are unable to accept these contentions. It is in evidence
that Gopal Das had lost three children even before 1890.
Evidently he had lost all hopes of getting a
natural son.
Further it is not necessary to speculate in
the face of the documentary evidence referred to earlier why Gopal Das should
have taken a son in adoption when there was every possibility for him to get a
natural son. Coming to the question of adoption on the very day Shyam Behari
Lal was born, that plea rests on hearsay information. There is no positive
evidence before us as to when exactly Shyam Behari Lal was adopted. From the
evidence of D.Ws. 10 and 15, it is clear that he must have been adopted very
soon after his birth. That is the best that can be said on the basis of the
evidence. That a art custom differs from place to place and from community to
community. It is true that in a decree made in 1910, Shyam Behari Lal was
described as the son of Ram Das. But in the very next year in another decree,
he was 111 described as the son of Gopal Das. We do not think that the evidence
afforded by that solitary document showing Shyam Behari Lal as the son of Ram
Das can outweigh the other evidence which is both satisfactory as well as
voluminous.
On an appreciation of the entire evidence on
record, we are in agreement with the High Court's conclusion that Shyam Behari
Lal was the adopted son of Gopal Das and there is nothing to show that the said
adoption was invalid for any reason. In view of this conclusion, it is
unnecessary to consider the other contentions raised in the appeal.
In the result this appeal fails and the same
is dismissed with costs.
Y.P. Appeal dismissed.
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