Mukherjee Vs. Kanta Bhusan Ghosh  Insc 396 (17 August 2001)
Shah Mohhamed Quadri & S.N. Phukan Phukan, J
appeal is directed against the order dated 28.8.2000 passed by the Calcutta
High Court in SAT No.2519/2000. The High Court has dismissed the second appeal
respondent herein filed a suit for ejectment of the appellant from ground floor
of the house situated at 9/3, Prince Anwar Shah Lane, Calcutta. One Ramesh Chand Ganguly was
inducted as a tenant by the respondent in respect of the said ground floor.
Late Ramesh Chand Ganguly died intestate on 15.11.87 leaving no heir or heirs.
to the respondent, on the death of late Ramesh Chand Ganguly the tenancy became
extinct. The appellant, the daughter of one Pramatha Nath Banerjee,
brother-in-law of Ramesh Chand Ganguly used to reside in the suit premises. The
respondent asked the appellant to vacate the suit premises alleging that she
was a trespasser. The appellant took the plea that she was the adopted daughter
of late Ramesh Chand Ganguly. On these facts, the suit for eviction was filed
which was decreed by the trial court and affirmed by the appellate court. As
stated above, the second appeal was also dismissed. The only point for
determination is whether the appellant was the adopted daughter of late Ramesh Chand
11 of the Hindu Adoption and Maintenance Act, 1956 lays down the conditions for
a valid adoption and for the present purpose Clause VI is relevant, which is
Other conditions for a valid adoption.- In every adoption, the following
conditions must be complied with:- (i) (v) .
the child to be adopted must actually given and taken in adoption by the
parents or guardian concerned or under their authority with intent to transfer
the child from the family of its birth or in the case of an abandoned child or
a child whose parentage is not known, from the place or family where it has
been brought up to the family of its adoption:
that the performance of datta homam shall not be essential to the validity of
Court in Lakshman Singh Kothari versus Smt. Rup Kanwar [1962 (1) SCR 477],
inter alia, held that there cannot be a valid adoption unless the adopted child
is transferred from one family to another, the object being to secure due
publicity. As appellant has taken the plea that she was adopted daughter of
late Ramesh Chand Ganguly, she must discharge the burden of the factum of
adoption and its validity.
appellant did not come to the witness box and on her behalf her son PW 1 was
examined. No document for adoption was produced before the court. The trial
court has also noted that this witness had no personal knowledge about the fact
of taking the appellant on adoption by late Ramesh Chand Ganguly. Another
witness PW 2, who was a neighbour, was examined on behalf of the appellant to
prove adoption. He also stated that he did not know anything about the alleged
documents were produced to prove the fact of adoption. Documents were produced
to show that a bank account was in the joint name of late Ramesh Chand Ganguly
and the appellant. Late Ramesh Chand Ganguly used to draw freedom fighters
pension and a document was produced to show that in the nomination papers, the
appellant was described as his daughter. These documents were duly considered
by both the courts below and rejected by giving cogent reasons. Regarding
nominating the appellant to draw pension on behalf of late Ramesh Chand Ganguly,
the first appellate court has also noted that in the said paper there was no
seal of the concerned authority.
having a joint bank account would not prove adoption in absence of any other
perusal of the judgments of the both the courts and the evidence recorded we
find that the appellant has miserably failed to prove that she was actually
given in adoption by her father and taken on adoption by late Ramesh Chand Ganguly.
Accordingly, we hold that both the courts below have rightly rejected the plea
of adoption set up by the appellant.
S.B. Sanyal, learned senior counsel for the appellant has relied on a decision
of this court in L. Debi Prasad (D) by Lrs. versus Smt. Tribeni Devi & Ors.
[1970 (1) SCC 677]. That was suit for possession and this court observed that
it was a case of ancient transactions and, therefore, it was but natural that
positive oral evidence was lacking and passage of time gradually wiped out such
evidence. From the facts of that case we find that two close relatives, who
were disinterested witnesses, deposed that ceremony of adoption was duly
performed in the parental home of the child. In the case in hand, there is not
an iota of evidence to show that any ceremony of adoption was performed and the
appellant was actually handed over for adoption by her parents to late Ramesh Chand
therefore, find no merit in the present appeal and consequently it is
dismissed. Party to bear their own costs.
Shah Mohammed Quadri] ..J.