Ganpati Chintamani vs Damodar Bhiku Bhutt

This is a first appeal from the judgment and decree of the Civil Judge First Class, Lashkar, by which the Plaintiff''s suit for declaration of title to and possession of a house situated in Saste-ki-Goth, Lashkar and left by one Govind Bhutt, has been dismissed.

Relationship between the parties may conveniently be described thus:

It is undisputed that the two branches of Ram Bhutt and Krishna Bhutt had separated at a time immemorial. It is also undisputed that the branch of Krishna Bhutt remained a joint family. The present suit relates to the properties belonging to the branch of Krishna Bhutt. Contest is between Ganpati Plaintiff and Damodar Bhutt Defendant. The Plaintiff''s case is that Govind Bhutt was the sole surviving coparcener of his branch. On his death the suit property devolved on the Plaintiff as his daughter''s son but the Defendant took wrongful possession of the house. It is averred in the plaint that Damodar had been adopted by Bhiku Bhutt and had thus gone to Ram Bhutt''s branch, which averment is denied by the Defendant who claims the estate as the surviving member of Krishna Bhutt''s branch.

The only question for decision in this appeal is, as it was before the trial Judge, whether Damodar was adopted by Bhiku Bhutt. It must be remembered that Bhiku died in Vikram Samvat 1960, i. e. in 1903 A. D., which fact is also undisputed. This is, therefore, a case of an old adoption and Shri Karkare contends that the learned trial Judge erred in disregarding the rule that in such a case even a slight evidence is sufficient to prove adoption.

Bhiku had a ''muafi'' in Sawai Jaipur State. It appears that on his death an application was made in the year 1904 on behalf of Damodar, then a minor, for the grant of a succession certificate. With that application a genealogical chart called ''kursinama'' was filed which may be reproduced here:

It is expressly mentioned in this pedigree that Damodar had "come by adoption" as son of Bhiku. The Plaintiff produced before the trial Judge a certified copy of the above ''kursinama'' and it is marked Exh P-2. It is urged by Shri Shejwalkar that the certified copy ought to have been proved as true and correct and that be has his own doubts whether in the original the words "GOAD GAYAA" and "GOAD AAYAA" are really written. I am quite unable to see why there should be any such apprehension in the mind of the Learned Counsel. Statutory presumption of the correctness of the certified copy Exh P-4 must be drawn u/s 79 of the Evidence Act. It was open to the Defendant either to have proved by summoning the original application that the copy was incorrect or to have shown that the copy was not issued by a competent authority or was issued without complying with the provisions of law governing its issue. Then only the Court was not bound to draw the presumption in regard to its genuineness as laid down by their Lordships in Bhinka and Others Vs. Charan Singh,

The Plaintiff filed before the trial Judge a copy of the order (Exh. P-4) by which a succession certificate was granted to Damodar. The order specifically makes a mention of the above ''kursinama''. It is also said in the order that the evidence of Raghunath son of Govind, Ram Chandra, Vasudeo, Laxmi Narayanji and Sadashivji was that Bhiku died on Baishakh Sudi 14, Samvat 1960 at Lashkar, Gwalior; that Damodar performed obsequies of Bhiku and a ''Pagree'' was tied on the head of Damodar; that there was no other heir except Damodar; and that Mahadeo, Vasudeo and Laxmi Narayan gave their consent and declared Damodar to be the heir.

The argument of Shri Shejwalkar is that in the said order it is not declared nor held that Damodar Bhutt was the adopted son of Bhiku Bhutt; it merely uses the word ''Waris'', meaning that Damodar Bhutt was Bhiku''s heir. In my opinion this argument, which has found favour with the trial Judge, is untenable. The order makes a specific mention of the said''kursinama''(genealogical chart). What is more, Mahadeo, Vasudeo and Laxmi Karayan were alive at that time and they belonged to the family as mentioned in the said order itself. In the presence of these last mentioned persons, Damodar could not succeed to the estate of Bhiku Bhutt unless he had been adopted by him. Apart from them, Raghunath Bhutt and his son Govind Bhutt himself occupied higher positions in the order of succession than Damodar Bhutt.

In his statement in this case, Damodar admitted that he did succeed to Bhiku''s Muafi in Sawai Jaipur. It is the Defendant''s admission that Raghunath Bhutt survived Bhiku and that Raghunath was a nearer cognate to Bhiku than himself. Unless Damodar had been adopted by Bhiku he could not succeed to that property when Raghunath was alive at that time.

Here the observations in Musammat Sumantra and Ors. v. Rishav Kumar and Ors. (1) became apposite:

Where an adoption has taken place long since and was acted upon by those who were vitally interested in denying it, every presumption will be made that every circumstance has taken place which is necessary to account for such a state of things as proved or admitted to exist.

The Defendant further admitted that there was a house situated in Janakganj, Lashkar, which belonged to Bhiku. This house also the Defendant got as Bhiku''s heir and he subsequently sold it. When particularly asked how he could inherit this property of Bhiku, the Defendant replied that he got it by succession just as he got the Muafi property of Jaipur. This again, is a very strong circumstance to prove that the Defendant had been adopted by Bhiku Bhutt, otherwise, in the presence of Raghunath Bhutt, he could not succeed to this property.

The Defendant admitted in his statement that on Bhiku''s death he performed the obsequial rites. He made an endeavour to explain it by saying that Govind Bhutt was not competent to perform those ceremonies although Raghunath Bhutt was, but he did not know why Raghunath Bhutt did not perform them. The explanation will require a feat of imagination to disturb the presumption which arises from the ordinary course of human conduct, viz., that Damodar could not have performed the funeral rites if he was not the adopted son of Bhiku, which strongly supports the Plaintiff''s case of adoption.

From all this, the conclusion is almost irresistible that Damodar had been adopted by Bhiku, and to say the least, any prudent man will, in these circumstances, act on that supposition.

The trial Judge has laid stress on the fact that the Plaintiff failed to prove the actual ceremony of giving and taking in adoption. In my judgment, the learned trial Judge has misdirected himself and has not kept in view what may be called the settled position of law. It is true that the onus of proving an adoption is on the party who alleges it. But after a lapse of long years, when the evidence must have naturally disappeared, it is too much to expect direct testimony of witnesses of the ceremony of actual giving and taking. When a person has for nearly half a century enjoyed the status of an adopted son and it 1952 1 N L J 331 : I L R 1953 Nag. 69 : A I R 1952 Nag. 295 .is not possible to get witnesses who were actually present at the time and could depose to the performance of the ceremony, it must be presumed that all the necessary ceremonies were duly and regularly performed. (See for instance AIR 1937 626 (Lahore)

In my opinion the three pieces of evidence, reference to which I have just made, are quite sufficient to discharge the Plaintiff''s burden and it is now to be seen whether the Defendant has satisfactorily rebutted the inference. It seems to me that the learned trial Judge has not drawn any conclusion from the Defendant''s evidence; he has merely given a summary thereof. Two certificates obtained from the Municipal Committee in the years 1936 and 1949 granting permission for constructions were produced by the Defendant. In both of them he has been described as Somnath''s son. In my opinion, these certificates are not of much value. It is a matter of common knowledge that in such a certificate the description of the applicant is just copied out from the application for sanction.

The Defendant produced four witnesses besides himself. On a perusal of their statements I am of the view that no reliance can be placed on their evidence. Muni Dev (P. W 1) stated his age as 57 years, Sadashiv Rao (P. W. 2) as 62 years, Shanta Bai (P. W. 3) as 40 years and Radha Bai (P. W. 4) as 60 years. The first two witnesses were examined on December 9, 1954 and the other two on May 9, 1955. Shanta Bai (P. W. 3) was not even born when Bhiku died. The other three witnesses also must have been minors at that time. Muni Dev Joshi (P. W. 1) stated that he started going to Damodar Bhutt about 40 years before his statement, that is, since the year 1914. He could therefore, have no knowledge about the affairs of this family in the year 1903, when Bhiku died. Sada-shiv Rao (P. W. 2) is not related to this family and no weight can be attached to his evidence which is of a negative type. Radha Bai (P. W. 4) claimed to be related to Govind Bhutt and Damodar Bhutt. She herself was about 8 or 9 years when Bhiku died. Adoption must have taken place some time before that. In another words, she was but a child then. She admitted that Damodar got the Jaipur Muafi and the house of Janakganj as Bhiku''s heir. She could not explain how Damodar could succeed to the estate of Bhiku Bhutt. She also admitted that Damodar sold the Janakganj house. This she explained by saying that as Govind Bhutt was in need of money for the treatment of his son, Damodar sold it and helped Govind Bhutt. This can hardly explain the conduct. The Defendant produced no documentary evidence nor even oral evidence to show that he was treated by his relations as Somnath''s son at any time after 1903. Even Radha Bai did not say so. To put it differently, the Defendant has not been able to rebut the strong circumstantial evidence, which is ancient.

As a result of the above discussion, it must be held that Damodar had gone in adoption in Ram Bhutt''s branch, as Bhiku''s son.

This appeal is, therefore, allowed with costs throughout. The judgment and decree of the Civil Judge, First Class, Lashkar, are set aside. It is declared that the Plaintiff is the owner of the disputed house. The Defendant shall deliver possession of the suit house, as described in the plaint, to the Plaintiff. The trial Judge shall proceed with the case under Order 20, Rule 12 (c) of the CPC to determine the amount of mesne profits.

A.H. khan, J.

I agree.