Tula Ram vs Chhaknu and Another

A.L. Vaidya, J.—The facts giving rise to the present litigation are that one Moti Ram was owner-in-possession of the property, which is the subject matter of the suit. This Moti Ram died on 25.9.1982. Respondent Chhaknu is the widow, while Raghunath, Respondent No. 2, is the son of deceased Moti Ram. Tula Ram, the present Appellant, who was the Defendant in the main suit, claimed himself to be the adopted son of Shri Moti Ram. Mutation of inheritance, after the death of Moti Ram, was attested and sanctioned in favour of Plaintiff-Respondents and Defendant-Appellant in equal shares, vide mutation No. 480 of Mohal Tikrigarh and mutation No. 457 of Mohal Batrundi. The mutation in favour of Defendant-Appellant was sanctioned on account of his being the adopted son of deceased Moti Ram.

The case of the Plaintiffs, as pleaded, has been that the Defendant representing himself to be the adopted son of deceased Moti Ram got the mutation of inheritance sanctioned in his favour to the extent of l/3rd share in connivance with the revenue officials and his father-in-law, one Birbal, who happened to be the Lambardar of the Illaqa. Plaintiffs'' further case had been that the Defendant himself procured, during the life time of Moti Ram, in the year 1978, some land as Nautor and got his family registered in the Parivar Register of the Panchayat separate from Moti Ram. According to the Plaintiffs, the Defendant had always represented himself to be the son of one Jhanda. Through the suit the Plaintiffs prayed that they alone were entitled to inherit the property of the deceased Moti Ram, being the widow and the son of the deceased and the mutation of inheritance attested and sanctioned in favour of the Defendant to the extent of l/3rd share was illegal and not binding on the rights of the parties.

The Defendant contested the suit. It has been his case, as pleaded in the written statement, that Moti Ram during his life time adopted him (Defendant), in accordance with the custom of the Illaqa, about 17 years back. The other averments pleaded in the written statement were pertaining to the facts that it was Moti Ram who educated and married the Defendant. The Defendant claimed that the mutation of inheritance sanctioned in his favour for l/3rd share of the estate of deceased Moti Ram was legally and correctly done.

The parties were put to trial on the following issues:

Whether Defendant No. l is validly adopted son of deceased Moti Ram, if so, to what effect? OPD.

Whether the mutation of inheritance of Moti Ram, Nos. 480 and 457 sanctioned in favour of Defendant Tula Ram are legal operative qua the rights of the Defendant? OPD.

Whether Sh. Tara Siridhar and Smt. parties, if so, to Singh, Bhagat Ram, Dewa are necessary what effect? OPD.

The trial Court held that Tula Ram Defendant was not the validly adopted son of Moti Ram and that mutations of inheritance in respect of the properties of the deceased Moti Ram were wrongly attested and sanctioned in favour of Defendant Tula Ram. These mutations, as per share of Tula Ram have been held to be illegal and not binding on the rights of the Plaintiffs. Issues No. l and 2 were accordingly disposed of, while under Issue No. 3, it was held that the suit was not bad for non-joinder of Tara Singh, Bhagat Singh and Shridhar. The suit, as such, was decreed.

The aforesaid judgment and decree passed by the trial Court were assailed in an appeal before the first appellate Court on various pleas. The main being that Tula Ram was the validly adopted son of deceased Moti Ram and that, as such, he rightly and validly inherited the l/3rd share in the estate of the deceased. The lower appellate Court dismissed the appeal and maintained the decree of the trial Court.

The aforesaid judgment and decree passed by the first appellate Court have been assailed in the present appeal on various grounds. However, the main ground has been again pertaining to the valid adoption of the Appellant by Moti Ram deceased.

I have heard the learned Counsel for the parties and have minutely scrutinised the pleadings as well as the evidence examined by the parties.

The sole point contended in the present appeal, on behalf of the Appellant, has been that he was validly adopted by Moti Ram deceased and as a consequence thereof he rightly inherited the estate of his adoptive father to the extent of l/3rd share, inasmuch as 2/3rd share has been inherited by the widow and the other son of the Adeceased. It is not so simple a matter, as has been contended on behalf of the Appellant. In order to appreciate the submissions put forth on behalf of the Appellant, at the first instance, the pleadings more specific to the factum of adoption, taken by the Defendant, are required co be referred to.

The Defendant-Appellant in his written statement pleaded that Moti Ram, during his life time, adopted the Defendant as his son, in accordance with custom of the Illaqa and of the community. It was also pleaded that the* Defendant was taken in adoption about 17 years back.

The written statement is dated 3.10.1983 and was filed on that very day. Seventeen years prior to this date comes out to be the year 1966.

The parties are Hindus and governed by the Hindu Adoptions and Maintenance Act, 1956 (hereinafter to be called as "the Act). To this, there is no dispute between the parties.

Section 4 of the Act is very much relevant to appreciate the case of the Defendant pertaining to the factum of adoption by custom. This Section runs as under:

Save as otherwise expressly provided in this Act,-

(a) any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act;

(b) any other law in force immediately before the commencement of this Act shall cease to apply to Hindus in so far as it is inconsistent with any of the provisions contained in this Act.

This Section gives over-riding application to the provisions of the Act and in effect lays down that in respect of any of the matters dealt with in the Act it seeks to repeal all existing laws, whether in the shape of enactments or otherwise, which are inconsistent with this Act. The result of the aforesaid provisions of the Act is that immediately on the coming into operation of the Act, the law of adoption and maintenance hitherto applicable to Hindus whether by virtue of any text, rule or interpretation of Hindu law or any custom or usage having the force of law ceases to have effect with respect to all matters dealt with in the Act. Thus, the adoptions made after the commencement of the Act are to be regulated by the provisions of the Act.

At the first instance, the plea of adoption taken by the Defendant is based on the basis of customary adoption alone. There is no other plea taken by the Defendant that he was adopted in accordance with the provisions of the Act. In this view of the matter, even if the plea of the Defendant is to be favourably considered in his favour, on the basis of the provisions of Section 4 of the Act, such an adoption under custom has been repealed and its natural consequence is that such an adoption through ''custom is non-existence in the eye of law. On this sole account, the Defendant''s plea has to be legally ignored.

Even if, for arguments sake, the custom, as pleaded by the Defendant has to be taken note of, this plea has again to be avoided, in as much as the plea does not contain the essentials of the custom, which are to be performed in the matter of adoption by the parties. Not only that, the instances of such a custom have neither been pleaded nor proved.

On the basis of the aforesaid circumstances present in this case, the plea of adoption raised by the Defendant based upon legal custom of the Illaqa and brotherhood does not help his case and has to be rejected.

It has further been submitted that even if the plea of custom, as alleged by the Defendant, does not give him any valid right of succession, even then on the basis of the evidence brought on record, the case of the Defendant has to be disposed of, on the basis of various provisions of the Act and it has to be considered an adoption under the provisions of the Act. I think, even if this aspect of the matter is appreciated, it does not help the case of the Defendant, as has been argued in this appeal.

Section 5 of the Act makes it abundantly clear that all adoptions made after the Act came into operation are to be regulated and governed by the provisions contained in this Chapter, which deals with Sections 5 - 17, and that any such adoption made in contravention of those provisions would be null and void. Section 5(2) of the Act provides that an adoption, which is void shall neither create any right in the adoptive family in favour of any person which he or she could not have acquired except by reason of the adoption, nor destroy the rights of any person in the family of his or her birth. These provisions u/s 5 of the Act only make those adoptions to be Valid, which are made after the commencement of the Act, in accordance with Chapter 2 of the Act.

In so far as the present case is concerned, the applicability of Section 7 of the Act would be involved, which Section runs as under:

Any male Hindu who is of sound mind and is not a minor has the capacity to take a son or a daughter in adoption:

Provided that, if he has a wife living, he shall not adopt except with the consent of his wife unless the wife has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a Court of competent jurisdiction to be of unsound mind. Explanation.- If a person has more than one wife living at the time of adoption, the consent of all the wives is necessary, unless the consent of any one of them is unnecessary for any of the reasons specified in the preceding proviso.

The admitted facts in the present case are that this Defendant was the son of one Jhanda and according to Defendant he was adopted by Moti Ram deceased. Section 7 of the Act provides that in case the person, who has to take a son or a daughter in adoption has a wife living, he shall not adopt except with the consent of his wife unless the wife has completely and finally renounced the world or has ceased to be a Hindu, as referred earlier. In the present case, the wife of Moti Ram is Smt. Chhaknu, one of the Plaintiffs. She has very categorically stated that her consent was never taken. The evidence in this behalf does not prove the fact that the wife of Moti Ram, Smt. Chhaknu, ever consented for such an adoption. Even Birbal, the father-in-law of Tula Ram did not speak about the consent of Smt. Chhaknu wife of Moti Ram, for the adoption of Defendant by Moti Ram. In the absence of such an important aspect the adoption, if at all, in favour of Defendant is rendered void.

It has been submitted on behalf of the Appellant that some document was executed, which recorded the factum of adoption of Defendant by Moti Ram deceased. That document is on the record as DW-4/A. This document is not registered one. According to the learned Counsel for the Appellant, the execution of this document raises presumption in favour of the adoption. I think, such a presumption is not available on the basis of this document, as per the provisions of the Act. Section 16 of the Act runs as under:

Whenever any document registered under any law for the time being in force is produced before any Court purporting to record an adoption made and is signed by the person giving and the person taking the child in adoption, the Court shall presume that the adoption has been made in compliance with the provisions of this Act unless and until it is disproved.

There is no doubt that presumption in favour of adoption can be raised on the basis of the execution of document but as per the provisions referred to above, this presumption can be raised in case the document was a registered one. The aforesaid Section lays down a rule of presumption, which requires that where there is a duly registered document of the nature envisaged in the section, the Court shall presume that the adoption was in compliance with the provisions of the Act, unless and until it is disproved. The factum of adoption must be proved in the same way as any other fact and there are no special rules of evidence to establish an adoption. Thus, this document again will not be of any help to prove the valid adoption of the Defendant by Moti Ram deceased, especially to raise any presumption in favour of such a validity.

It may be referred here that in this document, it has been referred that Moti Ram has made this Tula Ram son of Jhanda to be his adopted son. This Jhanda has been described as the brother of Moti Ram. In this document, this is the only reference made with respect to adoption and the other references pertained to the inheritance of the property of Moti Ram deceased. Anyway, the fact remains that the Defendant is relying upon this document to be his adoption deed. This deed is alleged to have been signed by Moti Ram and Birbal, his father-in-law, who is Lambardar and one another person. The original deed has not come on record but only its copy is there. I think, this deed cannot be said to be an adoption deed in any manner, coming within the ambit of Section 16. There is nothing in the deed detailing the requisites of a valid adoption, as has been provided for u/s 6 of the Act. This deed again nowhere contained the consent part of the wife of Moti Ram deceased, which was an essential condition of a valid adoption under the provisions of the Act. Anyway, the execution of this document, at the first instance, does not raise any presumption of any valid adoption in favour of Defendant and otherwise also this document did not establish the factum of adoption, as required under the "Act".

There are certain other circumstances, which have arisen from the evidence examined by the parties, which again do not help the case of the Defendant. This Tula Ram appeared to have developed some strained relations with Moti Ram and in the year 1976, he left the house of Moti Ram, as is evidence from Ex. PG, which is a receipt reciting that Tula Ram, after having received the articles of his dowry left the house of Moti Ram. This Tula Ram got his name entered in the Parivar Register of the Panchayat in the year 1978-7 9, as is apparent from Ex. PA. He preferred an application for the grant of his Nautor land, the copy of which is on record as Ex. PG and is dated 2.9.1978, where in the described himself as the son of Jhanda. Ex.PW 2/A is the certified copy of another application addressed by Tula Ram, with respect to Nautor land, to Tehsildar Churah, wherein again he described himself to be the son of Jhanda. This application is dated 18.6.1978. Ex. PW 2/C is the certified copy of the affidavit dated 18.6.1978, sworn in by Tula Ram, wherein again he has described himself to be the son of Jhanda. This application is dated 18.6.1978.

The aforesaid evidence only reflected that Moti Ram, who happened to be the brother of Jhanda, might have brought Tula Ram to his house and might have considered him as his son but without complying with the provisions of the Act for adopting him as a son. It appears that later on because of the strained relations, Tula Ram left the house and started living independently representing himself to be the son of Jhanda and not of Moti Ram.

Last but not the least, the learned Counsel for the Appellant has drawn the attention of this Court to Ex. DA, which is the copy of Jamabandi for the year 1978-79, wherein some 7 biswas of land situate in Khasra No. 1174 has been recorded in the name of Jhanda and a note has been given that through mutation No. 484, inheritance of Jhanda was sanctioned in favour of Tara Singh, Bhagat Ram, Shridhar, Nand Lal, Baldev and Smt-Mindei, Smt. Rupi, Smt. Paro and Smt. Hiro, being the daughters of, Smt. Sarwanoo and Smt. Reshmu, being the widows of the deceased. It is being contended that here the name of Tula Ram has not been there and on this it is being contended that Tula Ram had lost the right of inheritance in the family of his original father, which only meant that he was the adopted son of Moti Ram. I think such an inference on the basis of the aforesaid entries, even if to be considered, will not be legally available. The adoption, after the passing of the Act, has to be made in accordance with the various provisions of the Act referred to earlier and thus the instances being referred to will not carry any legal weight whatsoever to bring the adoption within the four-corners of the provisions of the Act.

Otherwise also, both the Courts below have given concurrent findings of facts pertaining to the factum of adoption against the Defendant-Appellant. Those findings, as such, do not require any interference, on the basis of the circumstances discussed above.

No other point has been addressed.

In view of the foregoing reasons, I do not find any merit in the appeal and accordingly dismiss the same with costs.