Sm. Godawari Devi vs Subh Karan Shiv Narain

Nigam, J.C.

Subh Karan filed Civil Suit No. 1 of 1945 claiming a declaration that the plaintiff was the owner of property detailed in paragraph 4 of the plaint and the defendant had no right or title to sell, transfer, mortgage or gift it and also a permanent injunction restraining the defendant from making any temporary or permanent transfer. The plaintiff claimed that he was the adopted son of Anant Ram and the defendant, being Anant Ram''s widow was his mother. That while the plaintiff was receiving education at Gurukul Mahavidyalaya, Jwalapur, the defendant and her mother-in-law purchased certain properties out of joint family funds, but got the sale-deed in their names. Actually the plaintiff is the owner and family assets were used for constructions on those lands. The relations between the parties became strained and the ''nohra'' and the land in question were given to the defendant for her maintenance. The plaintiff has learnt that the defendant is contemplating transferring the properties, hence the suit.

The defendant contested the suit. It was alleged that the plaintiff was not the adopted son of Anant Ram deceased, that the defendant was the exclusive owner of the property and had been in possession thereof. The learned Subordinate Judge, Beawar decreed the suit and granted the perpetual injunction claimed. The defendant appealed to the District Judge. The learned District Judge, by his judgment dated 21-2-1952, upheld the decree granted by the trial court and dismissed the appeal with costs. Now Ravi Dutt, representing Sm. Godawari, the defendant has come up in second appeal. I have heard the learned counsel for the parties.

Three points have been urged by the learned counsel for the appellant. He has contended that it was not satisfactorily proved that the plaintiff was the adopted son of Anant Ram, that the adoption was invalid in law as the widow had no authority to adopt and also because Sm. Godawari was at the time of adoption, incapable of taking in adoption as she was a minor. The learned counsel for the respondent has urged that the first point is concluded by a finding of fact arrived at by the learned District Judge and so far as the other two points are concerned, the appellant, not having raised these objections in the trial court, cannot be permitted to urge them now.

The learned counsel for the appellant has urged that the finding of fact arrived at by the learned District Judge is vitiated and is not binding on this Court as the learned District Judge did not properly concentrate on the fact of giving and taking but decided the question on assumptions and not on evidence. The learned counsel has referred me to Mayne''s Hindu Law, Eleventh Edition, page 237 and has relied on the passage:

The giving and receiving are absolutely necessary to the validity of an adoption. They are the operative part of the ceremony, being that part of it which transfers the boy from one family into another.

The learned counsel has also relied on - ''Ratan Devi v. Muno, AIR 1918 Lah 31 (A); - ''Ganga Ram v. Amir Chand'', AIR 1919 Lah 99 (B); - ''Shoshinath Ghose v. Krishna Sundari, 6 Cal 381 (PC) (C) and - Vishvanath Ramji Karale Vs. Rahibai Ramji Karale, for the contention that giving and taking of the boy is the essential part of the ceremony and that mere treatment of the boy as an adopted son or even the execution of registered document is insufficient to prove the factor of adoption. The learned counsel has also referred me to - AIR 1948 114 (Privy Council) - AIR 1930 79 (Privy Council) , and - Muthuswami Thever v. Chidambara Thever, 1948 2 Mad LJ 468: AIR 1949 PC 18 for the contention that the burden of proving the factum and the validity of the adoption lies heavily on the person who relies on the fact of adoption. AIR 1930 79 (Privy Council) lays down:

Very grave and serious onus rests upon a person who seeks to displace the natural succession of property by the act of an adoption. In such a case the proof requires strict and almost severe scrutiny, and the longer the time goes back from the date when the power was given to the time when it comes to be examined, the more necessary it is having regard to the fallibility of human memory and the uncertainty of evidence given after the lapse of such time, to see that the evidence is sufficient and strong.

Relying on these rulings, the learned counsel has urged that Ex. P/5, the deed of compromise was executed a long time after the alleged adoption. It was executed on 27-9-1919 and was registered on 10th October following. The adoption is stated to have been made sometime about 1910. Exhibit P/2 lease by Khuda Bux was executed on 9-3-1928. Again in document marked YC, one of the boundaries is mentioned as the house belonging to Subh Karan. There is also evidence to indicate that in Subh Karan''s marriage in 1912 and the marriage of Subh Karan''s son in 1940, the relations of Sm. Godawari brought certain presents. D.W. 2 Anant Ram and D.W. 3 Chatur Bhuj stated that the ''biradari neota'' or invitation was issued in the name of Subh Karan in place of the invitation in the name of Anant Ram. There is also evidence to suggest that joint family funds were spent on the education and the sacred thread ceremony of Subh Karan and that he resided in Anant Ram''s house upto the year 1928. The learned counsel for the appellant points out that all this evidence is merely evidence indicating that Subhkaran was treated as an adopted son. The contention of the learned counsel is that in the absence of positive evidence proving the fact of giving and taking, this evidence which has been accepted by the learned District Judge and relied upon by him should have been completely discarded.

The learned counsel further points out that only Subh Karan gives evidence of the fact of giving and taking; the other two witnesses, examined on behalf of the plaintiff, do not state that they witnessed any giving and taking. It is urged by the learned counsel that Subh Karan was admittedly 10 or 12 years old and his memory cannot be relied upon particularly as he is most interested in proving the adoption. The learned counsel thus argues that the evidence in support of The allegation of giving and taking is so meager as to be wholly insufficient to discharge that very heavy burden of proof that lay on the plaintiff.

The learned counsel for the respondent has, on the other hand, urged that the adoption was never challenged between 1910 and 1945. It is further urged that even in 1945 the adoption was not challenged till the plaintiff himself filed the suit asking for an injunction against his adoptive mother. The learned counsel has referred me to - AIR 1925 201 (Privy Council) and relies on the passage:

The burden, resting, altogether apart from the law of limitation, upon any litigant who challenges the authority of an admitted adoption, is indeed of the heaviest order.

It is contended that as the adoption has not been challenged for a period of 35 years or more, the burden was on the person who challenged the adoption particularly as the defendant had made an admission in a registered document Ex. P/5. The learned counsel for the respondent has also urged relying on - ''Jagannath Marwari v. Chandni Bibi'', AIR 1921 Cal 647 (I), that direct evidence is not necessary. The passage relied upon reads:

It is not necessary to produce direct evidence of the fact of adoption; where it has taken place long since and where the adopted son has been treated as such by the members of the family and in public transactions every presumption will be made that every circumstance has taken place which is necessary to account for such a state of things as is proved or admitted to exist.

The learned counsel has also cited - Kanhaya v. Naurang'', AIR 1923 Lah 374 (J); - ''Pannalal v. Chaman Parkash'', AIR 1947 Lah 54 (K) and AIR 1952 295 (Nagpur) in support of his contention. It is urged that where the adoption has been recognized for a pretty long time, the burden of disproving the adoption shifts to the person who challenges the adoption. The learned counsel has further relying on - Picha Pillai Vs. Kathaperumal Pillai and Others, urged that on proof of admission, such as made in Ex. P/5, the burden of proof shifts to the person alleging that the admission made by him is incorrect, for what a party himself admits to be true may reasonably be presumed to be true.

On a consideration, I am of opinion that as in the present case, the adoption remained unchallenged for about 35 years and the adoption was accepted not only by the members of the family who spent money on Subh Karan''s education and various ceremonies and permitted him to reside in the house but also by the community which issued the invitations on ceremonial occasions, there is a presumption that all the ceremonies necessary for the adoption were duly performed. Further Sm. Godawari herself having admitted the adoption would now be estopped from denying it. I am, therefore, inclined to the view that the conclusion arrived at by the learned District Judge, is amply justified on the evidence on record. Even if it were erroneous, it would be binding on this Court in view of - AIR 1929 152 (Privy Council) and - AIR 1929 19 (Privy Council) The first ruling lays down:

An erroneous finding of fact is a different thing from an error or defect in procedure and there is no jurisdiction to entertain a second appeal on the ground of an erroneous finding of fact however gross or inexcusable the error may seem to be.

I am, therefore, of opinion that the finding of fact recorded by the learned District Judge is justified on the evidence on record and that even if it is erroneous, the learned counsel for the appellant cannot be permitted to question it in this second appeal.

The second point urged by the learned counsel for the appellant is that the learned District Judge was wrong in not permitting the question of invalidity of the adoption to be agitated before him. This question was considered by the learned District Judge in the penultimate paragraph of his judgment which reads :

It has been argued on behalf of the plaintiff that the authority of the husband to make the adoption has not been alleged or proved. No such plea has been taken in the written statement. It is not therefore open to the appellant to challenge in appeal the authority of Shrimati Godawari to make the adoption to her husband.

The learned counsel for the appellant has urged that the learned District Judge took an incorrect view. His contention is that it was for the plaintiff to have urged not only the fact of adoption but also, as the widow in the absence of the authority from her husband is incompetent to adopt, to have alleged that the widow was vested with authority by her husband. The learned counsel has referred to me Mogha''s Law of Pleadings, 2nd Edn., page 43. The learned author says:

The party setting up an adoption should give particulars as to the person who adopted, to whom the adoption was made, the person adopted and his relationship with the adopter, and the person who gave in adoption. If the adoption was made by a widow, it must be alleged whether it was done by the authority of the husband, or with the consent of Sapindas or without such authority or consent. In case authority or consent is pleaded, particulars as to when and how was it given should be alleged........

On the other hand, the learned counsel for the respondent has urged that a statement that a person had been adopted includes the assertion of validity. The learned counsel has referred me to - AIR 1945 60 (Nagpur) Head-note (b) reads:

A party relying on an adoption need only plead the bare fact of adoption and then the law, as in the case of a contract or a marriage, will infer that all that was legally necessary and essential for the validity of the transaction was duly performed. It is not necessary to plead that all ceremonies necessary and essential for the validity of the adoption were duly performed. If, therefore, there is in the written statement a bare denial of the adoption it will be taken to imply a denial only of the fact of adoption and not of its legal validity. The principle of the rule given in O. 6, R. 8, Civil P.C., would apply.

The learned counsel has also relied on - Krishna Prasad Singh Vs. Adyanath Ghatak and Another, and - ''Nago v. Sukya'', AIR 1953 Nag 239 (R) in this connection. The point is covered by authority and I hold that it was not necessary for the plaintiff to have pleaded that Sm. Godawari had authority to adopt. It was for the defendant, if he challenged that authority, to raise the question specifically in his written statement. The defendant not having done so, is to be taken to have challenged only the factum of adoption i.e., whether in fact there was an adoption and not the validity of the adoption i.e., the authority or even the capacity to adopt, or the performance of ceremonies essential to constitute a valid adoption. In the written statement the question of authority was not raised, no issue was struck on the point, and the question was not discussed in the judgment of the trial court. This question was not mentioned in the memorandum of appeal presented to the District Judge and, as such, the learned District Judge was right in refusing permission for the question being argued before him. AIR 1946 97 (Privy Council) has been cited for the contention that it is not open to the defendant to take such a plea for the first time before the appellate court. Vedala Venkata Subamma Vs. Vedala Venkamma (dead) and Others, is relied upon for the contention that the defendant is estopped from denying the adoption. I am, therefore, of opinion that the question of validity of the adoption for lack of authority to adopt cannot be raised now not having been raised in the trial court.

The last contention of the learned counsel for the appellant is that Sm. Godawari, at the time of the adoption, did not possess the capacity to adopt. It is stated that Sm. Godawari was, at that time, not more than 14 or 15 years old. This question again was not raised in the written statement and no issue was struck on the point. The question was not discussed by the trial court or mentioned in the memorandum of appeal presented before the District Judge. The question was not even attempted to be raised before the District Judge, and it is now too late for the appellant to attempt to raise this question.

No other point has been pressed before me.

I, therefore, see no force in this appeal and dismiss it with costs.