Banwari Lal Vs. Tirlok Chand & Ors
(and Vice Versa) [1979] INSC 218 (23 October 1979)
KOSHAL, A.D.
KOSHAL, A.D.
UNTWALIA, N.L.
CITATION: 1980 AIR 419 1980 SCR (1) 998 1980
SCC (1) 349
ACT:
Hindu Law-Adoption-A statement in a will that
certain person was adopted son, if enough proof of adoption-Tests of
adoption-What are.
HEADNOTE:
G and J were the sons of S son of M. The
plaintiff was the grandson of another son of M.
In a document purporting to have been
executed by G it was stated that defendant No. 1 was his (G's) adopted son and
heir and that C (his younger brother J's widow) and defendant No. 1 had
rendered services to him, in recognition of which he bequeathed properties
detailed in the will to C to be enjoyed by her during her life time and that on
her death defendant No. 1 shall be their owner.
The plaintiff in his suit for partition
claimed that the properties detailed in Schedule A to the plaint had been
acquired by his great grandfather M, those in Schedule B were jointly acquired
by G and J, both of whom constituted a joint Hindu family, and those in
Schedule C which once belonged exclusively to J descended on his death to his
widow C. The plaintiff also challenged the adoption of defendant No. 1.
Defendant No. 1 on the other hand claimed
that since he was the adopted son of G the properties bequeathed to him by G's
will were his exclusive properties. He also claimed that the properties in
Schedule C were purchased by J's widow C with her stridhana, that by reason of
her will he was entitled exclusively to those properties and that they never
belonged to her late husband.
The trial court held that adoption had not
been proved and that the motive for the execution of the will was not merely
the recognition by the testator of his relationship through adoption with the
devisee but mainly the existence of feelings of love and affection for him. The
first appellate court held that the recital in G's will that defendant No. 1
was his adopted son was sufficient to prove the fact of adoption.
The High Court on the other hand was of the
opinion that the recital in G's will that defendant No. 1 was his adopted son
was not sufficient to prove the adopted and that the reference to adoption had
been made merely as a description of the devisee and not as a motivation for
the execution of the will.
HELD: Defendant No. 1 had not been successful
in establishing the alleged adoption. [1005 F] 999
1. (a) It is well-established that evidence
in support of an adoption must be sufficient to satisfy the very grave and
serious onus that rests upon any person who seeks to displace the natural
succession by alleging an adoption.
[1005 D-E] (b) The burden of proof of
adoption in this case lay heavily on defendant No. 1 which he has not
discharged satisfactorily. This is not a case in which the adoption had taken
place a very long time the suit was filed. It had in fact taken place within
about a decade immediately preceding the suit when witnesses who were present
at the ceremony and who had seen the giving and taking would normally have been
available. He did not explain why no such witness was forthcoming. [1005 A-B]
(c) The relationship mentioned in the will that defendant No. 1 was his adopted
son and heir was merely a description of the devisee as understood by the
testator.
The will was executed not because that
relationship was brought about by adoption but by reason of feelings of
affection which the devisee had earned by his association with and the
assistance rendered to the testator. [1003 H- 1004 A]
2. There is no force in the contention of the
plaintiff that the will executed by C must be held to be wholly inoperative in
so far as properties detailed in Schedules A and B were concerned because one
half of the properties mentioned in these schedules had vested in C under the
will of G which itself declared that she would hold them merely as a
life-tenant and that thereafter they would devolve on defendant No. 1. In
devising the properties to defendant No. 1, C did no more than carry out the
behest of her own testator, which behest was good in law. [1004 A-C]
CIVIL APPELLATE JURISDICTION: Civil Appeal
Nos. 1742- 1743 of 1969.
Appeals by Special Leave from the Judgment
and order dated 12-12-1968 of the Allahabad High Court in R.S.A. No. 2777 of
1972.
S. N. Andley, Uma Datta and T. C. Sharma for
the Appellant in CA 1742/69.
A. P. S. Chauhan and N. N. Sharma for
Respondent No. 1 in CA 1742/69 and for the Appellant in CA 1743/69.
1000 The Judgment of the Court was delivered
by KOSHAL, J.-The facts giving rise to these two cross appeals by special leave
may, with advantage, be stated with reference to the following pedigree-table:
CHHITAR MAL |
___________________________________________________________ | | | | Salag Ram
Banshi Dhar Narain Dass Bhagwan Dass | (died | | | issueless) | | | -----------
| | | | | | Balu Ram Ram Chander | | | | | | | Tirlok Chand | | | (plaintiff) |
| ------------------------ | | | | | | | Rag Vir Ram Nath Bhagirath | | Saran
(defendant) (Defendant | | No. 3) No. 4) No. 5) | | | |
------------------------------------- | | | | | Devi Sahai Piarye Lal Gopi Nath
| (died in (Defendent | | 1943) No. 2) | | | | | | | | | | | Damodar Dass Smt
Barfi | (defendant (daughter) | No. 6 |
____________________________________________________ | | | | Murli Kewal Ram
Govind Jagananth =Smt. Chhoti Dhar (dies Ram (died (died (died issueless (died
issueless issueless in 1925) in 1952) issue- in 1940 in 1955) in 1952)
____________________________________________________________ The litigation
between the parties started with suit No. 1912 of 1958 instituted by Tirlok
Chand for partition of properties detailed in schedules A,B and C forming part
of the plaint. His case was that 1001 the property described in schedule A had
been acquired by his great-grand-father Chhitar Mal, that the property detailed
in schedule B was jointly acquired by Salag Ram's sons Jagannath and Govind
Ram, the two of whom constituted a joint Hindu family, and that the property
specified in schedule C had once belonged exclusively to Jagannath, son of
Salag Ram and that it was from him that it had descended to his widow Smt.
Chhoti.
Apart from defendants Nos. 2 to 6 whose names
appear in the pedigree-table, Banwari Lal [who is the appellant before us in
Civil Appeal No. 1742(N) of 1969] was arrayed as defendant No. 1 and he has
been the real contesting defendant whose claim was based on his adoption by
Govind Ram, grandson of Chhitar Mal and on two registered wills, both dated the
25th of September, 1950, purporting to have been executed by Govind Ram and
Smt. Chhoti respectively. He claimed that the two testators had bequeathed
their entire property to him, that the property covered by schedule A was
acquired not by Chhitar Mal but by Salag Ram and that the one embraced by schedule
C had been purchased by Smt. Chhoti with her stridhana and was never the
property of her husband Jagannath. He therefore claimed to be entitled to all
the properties in suit exclusively for himself, it being common ground between
the parties that those properties were the subject-matter of the two wills.
The plaintiff denied the adoption set up by
defendant No. 1 and challenged the two wills as forgeries.
The trial court and the first appellate court
found that the property covered by schedule A had been acquired not by Chhitar
Mal but by his son Salag Ram. There was no contest in relation to the property
embraced by schedule B which was therefore treated to have been acquired
jointly by Govind Ram and Jagannath as part of their joint Hindu family assets.
In relation to the property detailed in schedule C, the trial Court held that
it had been acquired by Jagannath but the finding was reversed by the first
appellate court which found that the acquisition was made by Smt. Chhoti with
funds of her own, her husband Jagannath having no interest therein.
On behalf of defendant No. 1 no evidence was
led to prove that he had been given or taken in adoption. The trial court
therefore held that the adoption had not been proved.
In the will of Govind Ram however, there was
a recital that defendant No. 1 was his adopted son and this recital was
considered by the first appellate court to be sufficient to prove the adoption.
Both the wills were held to be genuine 1002 and legally valid and the suit was
therefore dismissed by the trial court and the first appellate court in to.
In second appeal the High Court upheld all
the findings of fact arrived it by the first appellate court except the one
relating to adoption. The High Court was of the opinion that the recital in the
will of Govind Ram about defendant No. 1 being his adopted son was not
sufficient to prove the adoption which therefore was held not to have been
established. It was further held by the High Court that a half share in the
property specified in schedules A and B having descended from Jagannath to Smt.
Chhoti as a life tenant only, she was not competent to will it away and that
the plaintiff, along with other members of the family, was entitled to succeed
to that half share.
It was vehemently contended before the High
Court that even if the wills be taken to be genuine, they would operate only if
defendant No. 1 was shown to have been validly adopted by Govind Ram because
both Govind Ram and Smt. Chhoti had described him as Govind Ram's adopted son
and must therefore be presumed to have executed the wills in favour of
defendant No. 1 by reason of his being the adopted son of Govind Ram. The
contention was repelled by the High Court (as it had also been by the trial
court) on the ground that the mention of defendant No. 1 as the adopted son of
Govind Ram in each of the two wills had been made merely as a description of
the devisee and not as a motivation for the execution of either will. Support
was found for this view from Ranganathan Chattiar and Another v. Periskaruppan
and Another.
In the result the High Court accepted the
appeal of the plaintiff in part, set aside the dismissal of the suit and
remitted the case to the trial court for declaring the shares of the parties in
the property which descended to Smt. Chhoti from her husband, in the light of
its (the High Court's) judgment and for partition of the property accordingly
thereafter.
2. Both the contesting parties feel aggrieved
by the judgment of the High Court. While defendant No. 1 claims in Civil Appeal
No. 1742 of 1969 the entire property covered by schedules A, B and C, the
plaintiff has filed a cross appeal (Civil Appeal No. 1743 of 1969) seeking to
defeat in toto the claim of defendant No. 1.
3. We have heard learned counsel for the
parties at length. In so before as the findings of fact are concerned they are
not open to challenge before us. The first question which learned counsel for
the plaintiffs 1003 has re-opened before us is whether the two wills were
rightly held to be operative in favour of defendant No. 1 inspite of the fact
that he was found not to have established his character as an adopted son which
was the description given to him in both the wills. To this question also we
think the High Court gave the correct answer. In this connection reference may
be made to the relevant part of Govind Ram's will and the same is extracted
below :
"Shri Banwarilal is the adopted son and
heir of the executant. Shrimati Chhoti is the widow of Jagannath Prasad,
resident of Pilkhuwa, Pargana Dasna, Tahsil Ghaziabad. Both the persons live
along with the executant and render all due service to the executant.
Therefore, I make the following will: That
after the death of the executant all my estate movable and immovable, with all
other goods and household property along with Dharamshala No. 1/60 and
one-storeyed shop No. 1/57 bounded as given below shall be owned by Shrimati
Chhoti widow of Jagannath Prasad, occupation shopkeeper, resident of Pilkhuwa,
who shall have no right to sell the estate. She shall have the right to spend
for the Dharamshala the income of shop No. 1/57 connected with the Dharamshala.
After the death of Smt. Chhoti, Banwarilal, adopted son and heir of the
executant, shall be the owner ..
Interpreting this document and considering
the surrounding circumstances of the case, the trial court found that the
motive for the execution of the will was not merely the recognition by the
testator of his relationship through adoption with the devisee but mainly the
existence of feelings of love and affection for him. It was found as a fact
that Banwari Lal was living with Govind Ram and Smt. Chhoti, that he had served
them during their illness and that he was affectionately attached to them so
that at the time when the wills were executed there was no one nearer or dearer
to Govind Ram and Smt. Chhoti than Banwari Lal. In this view of the matter, the
failure to establish the stated relationship is not decisive of the point under
consideration, and as remarked by the High Court, it appears that the testator
made the will not for the reason that he had in fact and lawfully adopted
Banwari Lal but for the reason that he treated Banwari Lal as an adopted son
and was moved really by the service which the latter had rendered to him. The
relationship mentioned in the will was merely a description of the devisee as
understood by the testator who executed the will in favour of the devisee not
because of the relationship 1004 brought about by the adoption but by reason of
feelings of affection which the devisee had earned by his association and
assistance.
4. The only other noticeable point raised on
behalf of the plaintiff was that the will executed by Smt. Chhoti must be held
to be wholly inoperative in so far as properties detained in schedules A and B
are concerned. There is no force in that contention either. One half of the
properties mentioned in those two schedules had vested in Smt. Chhoti under the
will of Govind Ram which itself declared that Smt. Chhoti would hold them
merely as a life-tenant and that thereafter they would devolve on defendant No.
1. In devising those properties to defendant No. 1 Smt. Chhoti did nothing more
than carry out the behest of her own testator, which behest was good in law and
would have been effective even if Smt. Chhoti had made no will in favour of
defendant No. 1 in respect of the properties acquired by her under Govind Ram's
will.
5. On behalf of defendant No. 1 the only
submission made was that the two wills must be given effect to not only with
regard to the properties received by Smt. Chhoti from Govind Ram but also in
respect of those which devolved on her as a successor to her husband Jagannath.
This submission is also without substance. Jagannath died in 1940 when Smt.
Chhoti came into his property on the usual
life-tenure without any right of a alienation (except for necessity) or of
devise. To the extent that she overstepped her rights in devising Jagannath's
property the will transgressed the law and has been rightly held to be
inoperative, the result being that her reversioners and not her devisee would
succeed to Jagannath's share in the properties covered by schedules A and B.
The situation would certainly have been different if the adoption had been
proved; for, in that case, defendant No. 1 would have succeeded as the sole
reversioner to the estate left by Smt. Chhoti, being her husband's brother's
son and therefore his nearest and sole heir. And that is why a contention was
raised on behalf of defendant No. 1 that a valid adoption had been proved and
that the finding to the contrary arrived at by two of the courts below was
unsupportable. Reference in this connection was made to the recital in the will
executed by Govind Ram about defendant No. 1 being the adopted son of the
devisor and to the oral evidence of Raj Pal, DW-2 who attested that will and
deposed that defendant No. 1 had been adopted by the testator. These two pieces
of evidence were considered by the trial court as well as the High Court, both
of whom regarded the material as insufficient to hold that a valid adoption was
proved. The finding in relation to the adoption is a finding of fact which we
see no reason to interfere with in the circumstances of the case. The 1005
adoption is alleged to have taken place within about a decade immediately
preceding the suit between the parties so that evidence of witnesses who were
present at the actual adoption and had seen the 'giving and taking' would
normally have been available. However, no attempt was made to produce any such
witness nor to explain why no such witness was forthcoming. Different
considerations may have prevailed if proof of adoption was required to be
submitted to court after a very long period of its having taken place, which is
not the case here. The statement made by the testator in the will about the
adoption is certainly a piece of admissible evidence as observed in
Chandreshwar Prasad Narain Singh v. Bisheshwar Pratap Narain Singh cited by
learned counsel for defendant No. 1 but there is no rule of law or prudence
laying down the principle that such a statement must be regarded as conclusive,
and this was also the view taken in that case. And the burden of proof of
adoption was heavy on the defendant. In this connection we may refer to the
following passage in Article 512 of Mulla's Hindu Law (14th edition):
".. But the evidence in support of an
adoption must be sufficient to satisfy the very grave and serious onus that
rests upon any person who seeks to displace the natural succession by alleging
an adoption. That onus is particularly heavy where the adoption is made a long
time after the date of the alleged authority to adopt.. " It is true, as
pointed out by Mulla in a later passage occurring in the same article that when
there is a lapse of a very long period between the adoption and its being
questioned, every allowance for the absence of evidence to prove the factum of
adoption must be favourably entertained;
but then that is not the situation here as we
have already pointed out. We are therefore one with the High Court in holding
that on the evidence adduced, defendant No. 1 has not been successful in
establishing the alleged adoption.
6. In the result both the appeals fail and
are dismissed with no order as to costs.
P.B.R. Appeals dismissed.
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