Narayan Lal Mahtha vs Bulak Lal Chaudhary and Others

Chatterji, J.—This appeal arises out of a suit for partition between members of a Gayawal family of Gaya governed by the Mitakshara School of Hindu law. Plaintiff 1 Bulak Lal Mahtha who is the father or grandfather of the remaining plaintiffs is the younger uterine brother of defendant 1 Narayan Lal Mahtha who is the father or grandfather of the remaining defendants. The plaintiffs claim half-share in the disputed properties mentioned in Schedules B,C and D of the plaint, which, they say, are the joint family properties of themselves and the defendants. The suit was contested by defendant 1 alone, his defence being that plaintiff 1, though his uterine brother was adopted into another family and that he (defendant l) has been in adverse possession of the disputed properties. The learned Subordinate Judge, overruling these defences, has decreed the suit. Hence this appeal by defendant 1.

The only question raised in this appeal is that of adoption. One Damaji Hall had three sons--Ganga Bishun, Radha Kishun and Hira Lal. Radha Kishun was adopted into a Mahtha family and was known as Radha Kishun Mahtha. Narayan Lal (de, fendant l) and Bulak Lal (plaintiff l) are the sons of Radha Kishun Mahtha. Hira Lal is said to have been adopted into a Choudhuri family and was known as Hira Lal Choudhuri, though it appears that he got the properties both of his natural and adoptive families. According to the defence Bulak Lal was adopted by the said Hira Lal Choudhuri some time in 1887 during the lifetime of Radha Kishun who died in 1889. The adoption is said to have been in the usual Dattaka form. Both oral and documentary evidence has been adduced on both sides. But considering the fact that the adoption is said to have taken place about 47 years before the trial of the suit, it will not be safe to act upon the oral evidence. I shall therefore confine myself primarily to the documentary evidence.

The earliest document in support of the adoption is Ex. A, a registered deed of gift dated 30th November 1905, executed by Hira Lal Choudhuri in favour of Bulak Lal. It recites that about 18 years ago the executant Hira Lal having no son asked his brother Badha Kishun to give his second son Bulak Lal in adoption to him and accordingly Radha Kishun and his wife gave Bulak Lal in adoption to him and since then he brought up Bulak Lai as his own son and performed his churakaran (tonsure), janeu (sacred thread) and marriage ceremonies. By this deed, Hira Lal gave away to Bulak Lal the properties mentioned therein including the books relating to his Jatri business. The deed further recites that

the said Babu Bulak Lal Mahtha shall get his feet worshipped by all the Jatris of me, the executant, for which I have given him the right under this deed, in place of me, the executant. He should bring into his own use whatever offerings and property he would get from the Jatris.

The recitals in this deed are clear enough and undoubtedly afford prima facie evidence of the adoption. Ex. B is a mortgage bond dated 10th December 1913, executed by Hira Lal in favour of one Sham Lal Mauar for Rs. 1000. Hira Lal died in February 1914 leaving the mortgage debt under Ex. B unsatisfied. On 10th May 1915 plaintiff 1 describing himself as Bulak Lal Choudhury, son of Babu Radha Kishun Mahtha, deceased, and adopted son of and in possession of the properties left by Hira Lal Choudhuri, deceased, executed a registered mortgage bond Ex. B(1) in favour, of the same Sham Lai Mauar for Rs. 2000, hypothecating some of the properties obtained by him from Hira Lal Choudhuri by the deed of gift. The necessity for borrowing the money on this mortgage, as recited in the deed, was to meet the, expenses of his daughter''s marriage. To satisfy the dues on this mortgage, as also on Hira Lal�s mortgage Ex. B, plaintiff 1 describing himself as Bulak Lal Choudhuri, son of Babu Radha Kishun Mahta, deceased, and adopted son of and in possession of the properties left by Babu Hira Lal Choudhuri wo Hal, deceased, executed as ale deed Ex. D, dated 3rd November 1915 in favour of the mortgagee Sham Lai Mauar for Rs. 5225 in respect of the mortgaged properties.

This deed recites that Hira Lal Choudhuri having no male issue had taken Bulak Lal in adoption and performed his churakaran, janeu and marriage ceremonies. In other words, in this deed there is a clear admission of plaintiff 1 himself that he had been taken in adoption from his natural father Badha Kishun by Hira Lal. Ex. E is an extract from the Demand Register of Gaya Municipality for 1911-20 which shows that plaintiff 1 described as Bulak Lal Choudhuri was assessed in respect of a pucca house. Presumably it refers to the house covered by the deed of gift Ex. A. Exs. H and H(1) are two vakalatnamas, dated 18th November 1932, and 8th May 1931, respectively, filed by Bulak Lal in two previous cases, in which he signed as Bulak Lal Choudhuri. Ex. J is his written statement dated 18th May 1931, in the suit in which he filed the vakalatnama Ex. H(l). Ex. 1 is a petition of objection dated 18th November 1932, filed by him as judgment-debtor in the execution case to which the vakalatnama Ex. H(1) relates. This is all the documentary evidence produced on behalf of the defendant.

On the other side the earliest document in Ex. 8 an entry in Register of Civil Suits relating to a suit instituted on 28th February 1893, by Narayan Lai Mahtha (defendant 1) and Bulak Lal Mahtha (plaintiff l) minor through guardian Narayan Lal Mahtha against Shashi Mohan Sen in respect of 2� kathas of land situate in Kalighat, Oaloutta. It appears from the evidence that this land had been gifted to Badha Kishun Mahtha, by one Kshemankari Chaudhurani. After Radha Kishun''s death his sons Narayan Lal and Bulak Lal came into possession of that land, but they were-subsequently dispossessed by Shashi Mohan Sen, adopted son of the said Kshemankari Chaudhurani. Thereupon they brought the suit to which Ex. 8 relates, in the Munsif''s Court at Alipore. The suit was dismissed on compromise on 16th March 1894, as Ex. 8 shows. On that very day Shashi Mohan Sen, the defendant in that suit, executed in favour of Narayan Lal and Bulak Lal a registered deed of exchange Ex. 3 by which some other property in Calcutta was given in exchange to them. In this deed Bulak Lal was described as Bulak Lab Mahtha, son of Radha Kishun Mahtha. The Calcutta property thus acquired by exchange was eventually alienated by Narayan Lal alone by the sale deed, Ex. 1 dated 16th March 1932 to one Srimati Suraj Mohini Debi.

The following recital in this sale deed is important:

Since then the said late Radha Krishna Mahatji was in rightful possession of the said gift property and he having died, I and my brother Shreeman Bulki Lal Mahata became entitled to and were in possession of the said property by right of inheritance, according to the Mitakshara. Then after the death of the said Kshemankari Chaudhurani Shashi Mohan Sen, the son taken in adoption according to the will of her husband having dispossessed us from some portion of the said land, we instituted Title Suit No. 271 of 1893 in the Munsif''s 2nd Court at Alipur, praying for recovery of possession on declaration of title to the saidt land, and the said suit was decided on compromise; and Shashi Mohan Sen, the defendant in the said suit, in exchange for the land made a gift of by his said mother gave a plot of land measuring 1� katha more or less, specified and lyin within the boundaries below, included the former holding No. 22 and the present holding No. 381 and on 3rd Chaitra 1300 B.S. corresponding to 18th March 1894 regularly executed a deed of exchange and got it registered and put me in possession thereof. Thereafter my brother the said Bulki Lal Mahata having been adopted as a son by Babu Hira Lal Choudhuri, according to Hindu, law and family custom of the Gayawalis prevalent in my part of the country, I am in possession and enjoyment of the said sixteen annas property in absolute right.

This recital shows that Bulak Lal Mahtha''s adoption, if any, must have taken-place subsequent to the execution of the deed of exchange in Maroh 1894. Radha Kishun Mahtha''s family had also some property in District Basti. Ex. 7 is a khewat of village Pakardanah in District Basti of 1319 Fasli (1912) which shows that 10 bighas, 4 kathas and 11 dhurs of land with a rental of Rs. 6 were recorded in the names of Narayan Lal and Bulak Lal, sons of Radha Kishun, with a note that they had equal shares. In respect of this property, there were some rent suits and ejectment suits which were instituted by both Narayan Lal Mahtha and Bulak Lal Mahtha who were described as sons of Radha Kishun Mahtha. Ex. 4(b) and Ex. 4 are judgments dated 6th March 1915 and 26th March 1915 respectively, in two such ejectment suits. Ex. 5 is the decree corresponding to the judgment, Ex. 4. Ex. 4(a) is the judgment dated 3rd July 1917 in one of the rent suits and Ex. 5(a) is a decree dated 3rd July 1917 in another rent suit. These documents show that Bulak Lal even long after the alleged adoption was regarded as a member of his natural father''s family and had interest in the properties of that family.

Bulak Lal''s explanation with regard to the documents produced by the defendant is that among the Gayawals the custom is that when one who is sonless makes a gift of his Gadi to another the latter is usually called his adopted son and that it was because Hira Lal Choudhuri made a gift of his Gadi by the deed Ex. A to Bulak Lal that the latter was called his adopted son according to the said prevalent custom. The Gayawals are otherwise known as the Pandas of Gaya whose main source of income is the Jatri business. According to traditional notions, a Gayawal commands the respect of his pilgrims who worship his feet and make offerings to him. The Jatri books maintained by the Gayawal are considered to be property. In order that the Jatri business may continue, a sonless Gayawal sometimes makes a gift of his Gadi (which really means his family business) to another who acquires thereby the right to the Gadi with all the prestige and privileges of the donor. A donee in such cases is known as the donor''s adopted son. Bulak Lal (P.W. 1) in his evidence says:

Among Gayawals a person will be called Paser Matamana (adopted son) of a Gadi which he will get by gift. This custom is ancient and exists from before my hosh. The epithet of Gadi received by gift is added to the name of the donee.

Bulak Lal''s case on this point receives some support from the defendant''s evidence also. D.W. 6 says:

Among Gayawals adoptions are very common. One Gayawal became malik of 4 or 5 Gadis, by being adopted by all the Gadis.

D.W. 14 says: "Gayawals become malik of several Gadis by means of adoption." Of course such adoption is not adoption in the accepted sense of the term under the Hindu law and it cannot have the effect of removing the adopted boy from his natural family. This peculiar kind of adoption amongst the Gayawals was considered by their Lordships of the Judicial Committee in Lachman Lal Chowdhari v. Kanhaya Lal Nowar (1895) 22 Cal. 609 in which their Lordship observed that amongst the Gayawals there exist peculiar and loose customs in regard to adoption. So it seems Bulak Lal has a plausible explanation for his statements in the documents executed by him subsequent to the deed of gift Ex. A. With reference to the mortgage, Ex. B(1) executed by him in order to raise money for his daughters marriage, it has been argued by Mr. Section MP Mullick, the learned advocate for the appellant, that this is inconsistent with his being a member of his natural family because-then the marriage expenses would have-been met by his elder brother, the karta of the family. But if sufficient joint family funds were not available, there was nothing unlikely in Bulak Lal raising loan on the security of his own properties.

As regards the recital in the deed of gift, Ex. A to the effect that the adoption had actually taken place 18 years ago, it is falsified to some extent by suit register Ex. 8 and the deed of exchange Ex. 3 and most effectively by the recitals in the sale deed, Ex. 1 executed by Narayan Lal himself. It is worthy of notice that the suit register, Ex. 8 and the deed of exchange, Ex. 3 are the earliest documents on the record and much prior to the deed of gift, Ex. A. If the adoption had in fact taken place in 1887, it is extremely difficult to understand why in 1893 Narayan Lai would, against his own interest, join Bulak Lai as a co-plaintiff in the suit for ejectment referred to in Ex. 8. The khewat Ex. 7 of 1912 in respect of the Basti property and the judgments and decrees of 1915 and 1917 (Exs. 4, 5, 4b, 4a and 5a) relating to that property are also inconsistent with the story of Bulak Lal having been adopted away in 1887.

The explanation given by Narayan Lal regarding these suits is that they were filed by his am-mukhtar Jitan Singh but the am-mukhtarnama, Ex. G in favour of Jitan Singh was dated 23rd March 1917, and it cannot therefore account for the suits of 1915. It was no doubt prior to the suits disposed of by the judgment, Ex. 4(a) and the decree, Ex. 5 (a) but it was executed by Narayan Lal Mahtha alone and it is futile to suggest that Jitan Singh on the strength of this am-mukhtarnama filed the suits on behalf of Narayan Lai and also Bulak Lal without their authority or knowledge. It has been suggested by Mr. Section M. Mulliok that it might be that because the Basti property was recorded in the khewat Ex. 7 in the names of both the brothers the suits were instituted by both. This suggestion rather strengthens the evidentiary value of the khewat which shows that the brothers had equal shares. Thus, on the side of the defendant, there is no satisfactory explanation for the aforesaid documents relied on by the plaintiffs. It is also significant that in the deed of gift, Ex. A itself which was executed 18 years after the alleged adoption, plaintiff 1 was described as Bulak Lal Mahtha and not as Bulak Lal Choudhuri which would have been the case if the adoption was true. Indeed the ancestral Gaya properties have been recorded in the name of defendant 1 alone but this is not inconsistent with the plaintiffs'' case because defendant 1 is the elder brother.

Upon a careful consideration of the ent re documentary evidence in the case, it is difficult to hold that Bulak Lal was in fact adopted by Hira Lal in 1887 or during the lifetime of Radha Kishun. In all likelihood, what actually took place was that Hira Lal who had no son and also lost his wife in his old age, as the recital in the deed of gift Ex. A goes, treated his nephew Bulak Lal as his own son and with a view that his family Jatri business might continue, he executed the deed of gift, Ex. A in favour of Bulak Lal treating him as if he was an adopted son. As actual adoption at that time was not possible, Radha Kishun and presumably his wife also having died long before, certain recitals were entered in the deed of gift, Ex. A to show that a valid adoption had taken place during the lifetime of Radha Kishun. The falsity of these recitals is fully demonstrated by defendant 1�s own statements in the sale deed, Ex. 1. After the deed of gift, Ex. A and after Hira Lal''s death Bulak Lal dealt with Hira Lal''s properties as his own and described himself in various documents as his adopted son. In the view I take of the documentary evidence, it is unnecessary to deal with the oral evidence adduced in support of the adoption which the learned Subordinate Judge did not believe and upon which the learned advocate in this Court also did not place much reliance. On the question of adverse possession, the finding of the learned Subordinate Judge has not been assailed before us. I would therefore dismiss the appeal with costs.

Rowland J.

I agree. I would like to make it clear that I do not accept the proposition advanced in evidence by the plaintiff that among the Gayawals the customary rules regarding adoption are so relaxed that a man may be regularly adopted into another family and still retain his interest in the estate of his natural father. Reference is made to Lachman Lal Chowdhari v. Kanhaya Lal Nowar (1895) 22 Cal. 609 in which there are observations as to "loose practices" prevailing among the Gayawals regarding adoption: it does not follow that there is no definite rule. It was not there laid down that an adoption in the Dattaka form could fail even among the Gayawals to have its usual consequence of loss of the rights of the son in his natural family. The present litigation has brought to light a number of instances of adoption so called with their consequences. The plaintiff''s natural father Radha Kishun Mahtha was by birth the son of Damaji Hal. Damaji himself was by birth a Choudhary who was given by adoption to be the son of Bhairo Hal. It is un disputed that Damaji by this adoption lost his connexion with the Choudhary family. Damaji had three sons, Radha Kishun Mahtha, Ganga Bishan and Hira Lal. Of these, Radha Kishun was adopted into the Mahtha family and admittedly severed his connexion with the Hal Gadi in which there remained the other two sons Ganga Bishun and Hira Lal.

Now Hira Lal is described as having been adopted by Maharani Dayee Choudhrain, wife of Earn Mohan Ghoudhary deceased, but after ''the adoption he retained both names of Choudhary and Hal and on the death of Ganga Bishun without issue he succeeded to the entire properties left by Damaji Hal, as well as those left by Maharani Dayee Chaudhrain. Then again defendant 1, Narayan Lal, has four sons Madho Lal Mahtha, Kohan Lal, Gobind Lal, and Balaji. In a sale deed Ex. 1, executed by Narayan Lal on 16th March 1932, there is a recital that the executant had four sons out of whom he has given away three in adoption, one to Mohan Lai Babu Lal, one to Raj Gobinda Lal Nidhuria Bahadur, C.I.R., and the fourth to Shreeman Narayan Tatak alias Balaji Tatak, and they have become members of other families. The remaining son having died without issue, the executant asserts his own absolute right in and possession over the 16 annas of the property.

We have seen nothing in these instances to throw doubt on the proposition that in order to sever the connexion of a son with his father''s estate there must be giving and taking, and on the other hand that if there is the formal giving by the natural father and taking by the adoptive father, the severance of status inevitably follows. The case of Hira Lal was a case in which the adoptive father was dead and the widow took Hira Lal as her son. It does not appear that specific authority to adopt was given by her husband. It seems a not unnatural result that Hira Lal afterwards described himself by both names Choudhary and Hal and took inheritance in property of both families. The Privy Council case in Lachman Lal Chowdhari v. Kanhaya Lal Nowar (1895) 22 Cal. 609 may have been similar. Mulchand was taken by his maternal uncle to whom there would be objections in Hindu law to his being given in Dattaka form. After the so-called adoption he used both the surnames of Choudhary and Nakphopha. Their Lord-ships quoted a remark by the lower Court that "even a person who gets another''s property by gift assumes the surname of his donor and calls himself as his adopted son."

The defendant has laid stress on the fact that in Exs. B(1) and D Bulak describes himself as Choudhary and not as Mahtha and Choudhary, the description contrasting with that of Hira Lal as Choudhary and Hal. The description is consistent with the case of the appellant, but if, as the admissions in Ex. 1 show, the "adoption" of Bulak Lal did not take place till after the death of his father Radha Kishun Mahtha, it cannot possibly have been a regular adoption in the Dattaka form. It can only be an instance of the practice referred to in the passage just cited.