Madhavrao vs Netram

Dixit, J.—The Plaintiff-Appellant''s suit for the redemption of a mortgage has been dismissed by the Court below. His case was that he was the adopted son of Arjunrao Akolkar; that Arjunrao Akolkar mortgaged the house in suit for Rs. 150 with Anandrao, on 6th May 1014; that subsequently on 9th June 1914, Anandrao sub-mortgaged that property to Gangubai who in turn sub-mortgaged it with Gulabrao and Netram. The Plaintiff alleged that the Defendants were asked by him to allow him to redeem the property but they refused the demand and denied the Plaintiff''s" right of redemption.

The plea of Gangubai was that Arjunrao had no right to mortgage the property which really belonged to her, that when she learnt of the mortgage and insisted on her right,, Arjunrao in order to save his own skin allowed her to pay Rs. 150 to Anandrao and take possession of the property. She further pleaded that the Plaintiff was not the adoption of Arjunrao and that he wag not entitled to redeem the property without paying besides the mortgage amount of Rs. 150 a further amount of Rs. 2,202-2-0 on account of expenses incurred by her in the re-construction of the house and on account of municipal taxes and interest thereon.

Anabdrao adopted the written statement of Gangubi, Gulabrao and Netram also took a similar plea and added that the Plaintiff could not redeem the property without paying the amount they themselves had spent on the repairs to the house. One of the issues which was tried in the suit was of the Plaintiff''s adoption. The lower Courts have held that the adoption was not proved and accordingly dismissed the Plaintiff''s suit without giving any finding on the other issues framed in the suit.

In this appeal Mr. Motilal Gupta learned Counsel for the Appellant urged that the evidence of the Plaintiff''s witnesses Keshawrao and Shyamrao amply established the fact of the Plaintiff''s adoption which took place some 17 years before the institution of the suit in 1939, that the Defendants adduced no evidence in rebuttal and that the learned Judges of the Courts below were wrong in rejecting this evidence on the ground that the witnesses were interested in the Plaintiff and their evidence did not disclose that the adoption was valid in law.

It was said that the Defendant''s bare denial of adoption implied a denial only of the fact of adoption and not of its legal validity and that therefore, the Courts below were not justified in holding that the Plaintiff had not established all that was legally necessary and essential for the validity, of adoption. In my opinion the contention advanced by the learned Counsel for the Appellant must succeed.

In the present case the evidence of the factum of the Plaintiff''s adoption mainly consists of the statements of Keshavrao and Syamrao. Keshavrao is a brother of Rajabai who adopted the Plaintiff after her husband Arjunvao''s death. He deposed that ceremonies according to Shastras were held in connection with the adoption; that he himself participated in those ceremonies and that Mannajirao gave Madhavrao in adoption. The witness was not cross-examined on his statements relating to the adoption. The cross-examination was directed mostly to the question whether the house in suit belonged to Arjunrao or not.

The evidence of Keshavrao on the Plaintiffs adoption was corroborated by Shyamrao who said actually did not see the Plaintiff (sic) bai''s lap as she was in Parda. The trial Judge rejected the evidence of Keshavrao simply on the ground that he was an uncle of the Plaintiff and-that of Shyamrao for the reason that he was Keshavrao''s servant. He then proceeded to attack the evidence of Keshavrao saying that from his evidence it was not clear whether Mannajirao could validly give the Plaintiff in adoption and whether Rajabai had obtained the requisite permission from the collaterals for adopting the Plaintiff.

None of these grounds in my opinion, destroy the value of the statement of Keshavrao corroborated as it is by Shyamrao that the Plaintiff was in fact adopted by Rajabai, Keshavrao being a brother of Rajabai who adopted the Plaintiff, his presence at the adoption ceremonies is natural. When, therefore he deposed that he brought Madhavrao, that he was adopted by Rajabai according to Shastras and that Mannajirao, gave him in adoption, he could not be held to be untrustworthy merely because he was a brother of Rajabai.

There is also nothing odd in Keshavrao''s servant Shyamrao being present at the adoption ceremony and not actually seeing Madhayrao being placed in the lap of Rajabai who was in Parda. Shyamrao''s evidence supports the statement of Keshavrao that there was an adoption ceremony. The learned Judges were also not right in thinking that the evidence of these two witnesses was valueless because they did not say anything about the essential requisites for the validity of the adoption.

The Defendants did not in their written statements assert that the adoption was invalid in law and state the grounds of invalidity. Their plea was of a bare denial of the adoption. No issues were struck on the points whether the Plaintiff was validly given in adoption or whether Rajabai had obtained the necessary permission. The Respondents thus only denied the bare fact of adoption. They could not, therefore be permitted at the time of the arguments to raise objections to the validity of the adoption. Nor were the Courts below justified in doubting the validity of the adoption on a sea of objections not taken in the written statements.

I have already pointed out in the case of Parmanand v. Laxrninarayan, First Appeal No. 35 of 1949 (MB) (A), that where a party challenges an adoption by a bare denial, the denial can Be taken only of the fact of adoption and not of its legal validity and that if the party does not raise any objection as to the validity of adoption then he cannot be permitted to urge that there was no evidence to show that the adoption, if it did take place, was not valid in law. To the same effect are the decisions in Nago v. Sukhye AIR 1953 Nag 239 (B); Maroti v. Radhabai AIR 1945 Nag 60 (C) and Krishna Prasad Singh Vs. Adyanath Ghatak and Another, . In Maroti v. Radhabai (C), Bose J. observed:

That a party relying on an adoption need only plead, the bare fact of adoption and then the law will infer that all that was legally necessary and essential for the validity of the adoption was duly performed and that a bare denial of adoption implies a denial only of the fact of adoption and not of its legal validity.

Where, therefore, a party desires to challenge the validity of adoption he must specifically plead and state the grounds of the invalidity of the alleged adoption. The Defendants here having only, challenged the factum of adoption and having omitted to raise any queshou as to the validity in law of the adoption, the question which the Courts below had to consider was only this namely, whether there was any valid reason for discarding the direct evidence of Keshavrao and Shyamrao as to the fact of adoption. There docs not appear to meany such reason.

It is true that the Plaintiff could have produced corroborative evidence of Kajabai and of the priest who officiated at the ceremonies. But the omission is not fatal to the Plaintiff''s case of adoption when the evidence of Keshavrao and Syamrao is unchallenged. The bare statement of the Defendants witness Ramrao that the Plaintiff was not adopted, does not in my opinion, displace the effect of the evidence of Keshavrao and Shyamrao.

In my opinion in the circumstances of the case the evidence of Keshavrao and Shyamrao must be taken as sufficient to establish the fact of the Plaintiff''s adoption, in this view of the matter it is not necessary for me to consider the other evidence which the Plaintiff sought to introduce and which the Courts below rejected to show that Rajabai was authorised by the Gwalior Darbar to adopt him and that he was recognized as the adopted son in a litigation between him and Ramrao.

I would, therefore hold that the Plaintiff is the adopted son of Arjunrao and competent to maintain the suit and remand the case to the trial Court for the determination of other issues in the suit and for its disposal according to law. Costs in this Court and in the lower appellate Court shall abide the result of the suit.