1. This appeal is filed by one Paryanibai widow of Raghoji whose suit for a declaration that respondent Bajirao was not a validly adopted son of her deceased son Baliram has been dismissed in the trial Court, and that dismissal has been affirmed in the lower appellate Court.
2. The plaintiff's case was that she had a son by name Baliram who died on 19th January 1950. At the time of his death Baliram left two widows. The senior widow, i.e. the one married earlier to him was Mathurabai and the other was one Dhrupatabai. It is an admitted position that Mathurabai was younger to Dhrupatabai, but the age of these two widows of Baliram is a matter of dispute between the parties. Plaintiff's case was that Baliram died issueless and that he had prohibited any adoption being made after his death-Mathurabai who is the senior widow remarried some time in 1953 and so did the other widow Dhrupatabai. There were proceedings for mutation of the field property after the death of Baliram which were contested proceedings. Those proceedings were decided against the plaintiff, and the plaintiff filed a suit for a declaration that defendant Bajirao who claimed to have been adopted by Mathurabai on 26-6-1950 was not so adopted and, at any rate, the adoption was invalid.
3. The ground on which the adoption was challenged as invalid was that the adoptive mother Mathurabai was of an immature age and had not attained the age of discretion. The age which was stated to have been attained was hardly 12 or 121/2 years at the time of the alleged adoption. On this ground the plaintiff claimed to be the reversionary heir of her deceased son Baliram after having the adoption declared invalid.
4. The only person impleaded as defendant in the suit was the alleged adopted son Gulabrao alias (Bajirao) who was represented by his natural father Deorao. The defendant claimed the status as an adopted son and resisted the suit. With regard to the invalidity of the adoption on account of want of due capacity in Mathurabai, the defendant merely denied that Mathurabai was 12 or 12 1/2 years of age. The defendant stated that the age of Mathurabai was such at which she should make adoption. The defendant also denied that Mathurabai had not attained the age of discretion. In addition the defendant specifically pleaded that at time of his death the deceased Baliram had specifically given authority to adopt, and in pursuance of that direction the adoption was made by his widow.
5. At the trial the plaintiff examined herself and 8 other witnesses. The evidence led on behalf of the plaintiff was mainly directed to prove the alleged prohibition to adopt, as well as the age of the adoptive mother Mathurabai. Plaintiff's witnesses consistently deposed that Mathurabai was about 10 or 12 years of age at the time of the alleged adoption and that she had not attained the necessary age of discretion or understanding. The defendant on the other hand, in addition to certain documentary evidence to which reference will be made later on, examined the photographer who took a photo alleged to have been taken at the time of the adoption, the petition writer who scribed the adoption-deed and one Sitaram who attested the deed of adoption. No other person such as the natural father of the adoptive boy or any other relation of the adoptive mother or the adopted son went into the witness-box.
6. The trial Court found that the plaintiff had failed to prove prohibition to adopt and that the defendant failed to prove a specific authority to adopt. It found that both the widows of Baliram remarried, Dhrupatabai in 1950 and Mathurabai in 1953. It was found that the defendant was duly proved to have been taken in adoption after necessary ceremonies. As to the capacity of the widow to adopt, it was held as not proved that the widow had not attained the age of discretion to take the boy in adoption. In fact the finding was that Mathurabai was proved to have been 15 years of age on the date of adoption, and thus it was held that she could be normally deemed to have attained the proper age of discretion. Reliance was placed on the decision of this Court in Basappa v. Shidramappa, ILR 43 Bom 481 : AIR 1919 Bom 107) and Kashinath v. Anant Murlidhar : AIR1942Bom284 . In dealing specifically with this question the trial Court observed as follows :
'The adoption took place on the 26th June 1950; them Mathuri was about 15 years of age at the time of adoption. She should normally have attained proper discretion at the time, and as I have already observed, there is nothing to show that she was mentally retarded. An age of 14 1/2 years has been held to be a normal age of discretion in cases of adoption under Hindu Law.'
7. The plaintiff filed an appeal before the District Court which was rejected by the Additional District Judge, Buldana. The Additional District Judge negatived the contention of the plaintiff that the adoption ceremonies were not properly gone through or that the deceased had prohibited the widows from taking anybody in adoption. On the question of the widow's having attained the age of discretion, and the age of Mathurabai, the learned Judge observed as follows
'While dealing with the question of Mathura-bai's age, who adopted respondent as a son to her deceased husband Baliram, the learned Judge has come to the conclusion, after a careful scrutiny of all the evidence led by the parties that she was of 15 years in age at the time, when she took respondent in adoption. I would fully concur with this finding, which was also not questioned by the learned counsel for the appellant. Apart from oral evidence, a copy of birth report (exhibit D-8), showing that Mathurabai was born on the 20th June 1935, her name being recorded as Gajri, which was her original name, as admitted by Plaintiff Paryanibai in her evidence as P. W. 1, would also go to prove that she was about 15 years in age, when this adoption took place on the 26th June 1950.'
With regard to the contention that the defendant had still to prove that the adoptive mother who was admittedly a minor ought to be shown to have attained the age of discretion the learned Judge observed as follows :
'The learned counsel, however, argued that the question of her proper understanding and independent Judgment, to prove that she had attained the age of discretion was a question of fact, and should have been independently proved by definite evidence, irrespective of her age, instead of presuming the same, as was done by the lower Court. This is true to some extent, but I would not entirely agree with the learned counsel for the appellant, that no presumption about understanding and competence for independent judgment, could arise in favour of a person, whose definite age has been proved. Once it was proved that the adoptive mother Mathurabai was of 15 years in age the burden would shift on the plaintiff herself, to prove that in spite of that age, she had not attained full understanding, or was mentally retarded or backward. No such abnormality was either pleaded or proved by the plaintiff, and therefore, the usual presumption about the understanding in accordance to the standard of age, must follow.'
Later on the learned Judge observed:
'The burden was clearly thrown on the person questioning widow's understanding and her age of discretion. ............... In this case, this burden was not discharged by the plaintiff appellant.'
He also referred to the fact that both the widows had subsequently confirmed this adoption when they were examined by Naib-Tahsildar in mutation proceeding which would show that the adoption was never challenged by the widows. With these observations, the learned Judge affirmed the finding of the Court below even with regard to the capacity of the widow to adopt and dismissed the appeal.
8. The learned counsel for the appellant Mr. Chandurkar has urged and in my opinion rightly that the approach to the question to be decided as regards the validity of adoption which found favour with both the Courts below is erroneous and not warranted by the decisions of this Court. It was also urged that it has not been established, as presumed by the two Courts below, that Mathurabai had completed the age of 15 years on the date of the alleged adoption. There is considerable force in this argument of the learned counsel for the appellant.
9. It must be observed at the outset that a certain conclusion as to the issue involved has been lost sight of because the contention was that the boy was adopted by both the widows and what was put in issue was the age of discretion of the widows of Baliram. It is no longer disputed and could not be disputed that the only widow of Baliram who had a right to adopt was the senior widow viz., Mathurabai and that whether or not the other widow viz. Dhrupatabai consented on did not consent to the adoption would not affect its validity one way or the other. Thus the evidence introducing to show the age of the other widow, viz., Dhrupatabai or the argument that both the widows had attained the age of discretion really clouds the issue which is whether Mathurabai had attained the age of discretion and what was the age of Mathurabai. It is not disputed here that it was Mathurabai who took the defendant in adoption and what had to be established was the age of Mathurabai and whether she was competent to adopt and whether the adoption effected by her was a conscious act on her part. The learned Judges of both the Courts below have assumed that Ext. D-8, which purports to be an entry of date of birth of a daughter called Gajri horn to one Gunaji is proved to be the entry relating to the date of birth of the adoptive mother Mathurabai. Unfortunately there is no basis for such assumption. It is no doubt true that the entry regarding the birth maintained in the kotwari book like birth register is receivable in evidence under Section 35 of the Indian Evidence Act. But it is wrong to assume that mere filing of a copy of an entry in the birth register or the kotwari book proves ipso facto that the entry relates to or proves the birth of the person concerned; evidence has to be introduced to connect that entry with the person whose date of birth has to be established. Thus the learned Judges of the Courts below were wrong in finding that merely because a certified copy of the entry of the date of birth from the kotwari book was filed at Exh. D-8, and P. W. 1 Paryanibai admitted that Mathurabai was called Gunaji and that her father's name was Gunaji. This much material on record automatically established that Mathurabai was born on the date mentioned in Exh. D-8. It was necessary for the defendant to further lead evidence to prove by calling relations or some other persons that Mathurabai was born at the village from which the Kotwari book entry is produced, that she was born to Gunajt, the number of children that Gunaji had and that the report of the birth was made in respect of the birth of Mathurabai. If this necessary and vital link is missing in the chain of evidence, then the defendant must be taken to have failed to connect the entry in the kotwari book register as the entry with respect to the date of birth of Mathurabai which fact had to be proved by the defendant. It is only necessary to invite attention in this case to a few decisions such as State of M. P. v. Kamruddin, 1955 NLJ 799 : AIR 1956 Nag 74, Hemanta Kumar Das v. Alliantz Umd Stuttgarter Life Insurance Co., Ltd. : AIR1938Cal120 and Eiseswar Misra v. The King, AIR 1949 Ori 22. It is now the established rule that connection of the identity of the person under the entry must be established by other evidence. Entries of names of persons in a register of birth or deaths or marriages cannot be that evidence by itself and the identity of the persons with the entry should be fully proved. I, therefore, hold differing from the Courts below, that the defendant has failed to establish that Mathurabai was born on 20th June, 1935, as is assumed in the lower Courts relying on Exh. D-8.
10. Then it is further contended by Mr. Deshpande the learned counsel for the respondent that it is possible, to arrive at least at an approximate age of the adoptive mother, viz., Mathurabai from other evidence on record. Now so far as this other evidence is concerned it consists only of the witnesses examined for the plaintiff. Alt these witnesses have consistently deposed that Mathurabai was not more than 10 or 12 years of age-at the time of the alleged adoption. But it is urged by the learned counsel for the respondent that there are other admissions in the testimony of these witnesses which indicate that the estimate of the age of Mathurabai given by them is erroneous when their estimate was tested by other admitted facts, such as the age of Baliram or difference in the ages of Baliram on the one hand and his two widows on the other. It is only sufficient to mention that neither of the two Courts below have accepted this evidence one way or the Other and have preferred to rest their finding regarding the age of Mathurabai on the documentary evidence, viz., Exh. D-8. In my opinion, the Courts below were also right in finding themselves unable to come to any conclusion as to the exact age of Mathurabai on the statements made by the witnesses which are, in the nature of estimate evidence or opinion only. It is sufficiently well known that appearance or rather description as regards age of a person and estimate of age or reliance on memory regarding past events as to the time they took place is hardly a reliable basis to come to a definite finding about the age of any person. The best evidence of age has always been considered to be the evidence regarding the actual date of birth. Such a date of birth could have been properly established by the defendant in this case. If the defendant failed to do so he must take the consequences of his failure. I do not find it possible to come to any conclusion regarding the age of Mathurabai that is orally proved. On the one hand there is positive evidence about the age given by the witnesses examined by the plaintiff that Mathurabai was not more than 10 or 12 years of age at the time of the alleged adoption. On the other hand it is sought to be inferred from other statements in their depositions that she may have reached about 15 or 16 years of age. If the evidence on record thus leave it in an indeterminate state, it is not possible to conclude one way or the other as regards the exact age of Mathurabai on the date of adoption.
11. It is however, pertinent to note that what has to be established in a case of this kind where a person claims to have been adopted by a girt of immature age who is almost in teens as in this case, is that the validity of adoption will not be inferred unless the conscience of the Court is satisfied that the act of adoption which is attributed to a teen-aged girl like Mathurabai was a conscious act, that it was an act of a person who knew what she was doing, how it would affect her rights in the property and that she was acting as a free agent of her action without being influenced by any other person who had an axe to grind. That this is a necessary requirement to be proved for the validity of such an adoption has been laid down in this Court as far back as 1866. The judgment reported in Bayabai v. Bala, 7 HCR 1, and particularly the observations at p. 20. are always accepted as the true statement of law-regarding the requirements and the burden which has to be discharged by any one who sets up an adoption of this kind. The relevant observations are :
'Not only was the appellant a Hindu female whom the law only barely recognises as sui juris so careful does it require that the Court should be in ascertaining that she has full, knowledge of the nature and consequences of any acts affecting. her legal rights, which she has been induced to perform -- but she was only 17 years of age at the time of the alleged adoption (as was admitted in the course of the argument), and she could have had little more experience or knowledge of the world than a mere child. If she adopted or assented to the adoption of the infant plaintiff at all, she manifestly did so at the suggestion of the Brahmans, Gumastas and clerks who surrounded her, and who were the real actors on the occasion, and who were desirous to transfer to their own hands the control and management of Raniakant's property and firm during the minority of the infant plaintiff.
Looking at the effect of adoption upon the rights of a Hindu woman who succeeds to the property of her husband, we should expect clear evidence that she was fully informed of those rights, and of the effect of the act of adoption upon them;--an act which reduces her from the position of complete and absolute mistress of her husband's moveable property and tenant for life at least, of his immovable property, to a mere right of maintenance.
Hindu women should be shielded from cajolery and undue influence with nearly all the jealous strictness with which the rights of a minor or other person not sui juris are watched -- not an iota of which strictness should be abated in the instance of a widow just emerging from infancy, as was the case with the appellant at the time of the alleged adoption. Some relaxation of this strictness would of course be allowable in the case of a Hindu woman whose husband has directed that she should adopt. She is then under at least a moral duty to adopt, and the act of adoption by her is one which may justly tie expected. It is different in the case of a woman whose husband leaves no such direction, because the act is one in derogation of her own right; and not in obedience to any order of her husband and especially so in this case, in which the husband from an anxiety to preserve his estate intact for his wife, has positively refused to adopt. If the conscience of the Court were satisfied that the widow voluntarily performed the ceremonies absolutely essential for adoption, and had been previously fully informed, first of her rights, and secondly, that the effect, of an adoption upon them would be wholly to divest her of those rights and to reduce her to a maintenance, it would be the duty of the Court to uphold that act of adoption, supposing the law to be that a widow may, at this side of India, adopt a son without the express authority of her husband--a question on which we do not consider it necessary nor do we propose now, to express any final opinion.'
12. Then we come to the case which has been relied upon in the Court below, viz., the decision in : AIR1919Bom107 . In that case the age of the adoptive mother was proved to have been 15 years. After referring to a decision of the Calcutta High Court, viz., Mandakini Dasi v. Adinath Dey, ILR 18 Cal 69, it was observed of the report as follows :
'it should also be borne in mind that in this case the authority to adopt was given by a person of full age, and the validity of the adoption is* questioned on the ground that the person who exercised that authority was a minor. Upon this point there is a case given in Macnaghten's Precedents of Hindu Law (Chapter VI, Case V) in which the Pandits' opinion was to the effect that the non-age of the widow is no obstacle to an adoption by her. Similarly in the present case there is nothing to show that at the date of the adoption in July 1912 Basava had .not attained sufficient maturity of understanding to comprehend the nature of the act. In fact she was about fifteen years of age, and there is no reason to presume that a Hindu girl of that age who has been married. for two years or more, living with her husband, does not realise what is meant by taking a son in adoption......'
These observations no doubt would support a contention that having established that the age attained by the adoptive mother was fifteen years, a presumption would arise that the girl had the necessary understanding and attained the age of discretion. But later decisions of this Court took a slightly different view where the matter has been more fully considered. In ILR 44 Bom 327 : AIR 1920 Bom 354, Murgeppa v. Kalawa, the age of the girl who adopted was found to be 12 years.The learned Chief Justice' has observed as follows :
'It seems to us that considering the importance of the act of adoption, it should be necessary that the adopting widow must have reached such an age of discretion that she must be able to realise the importance of her act, to make up her own mind as to the person she ought to adopt. There may be circumstances which will enable the Court to consider whether a widow has reached the age of discretion. That she has attained to puberty may be one circumstance but in this country not necessarily the only one. The actual age of the widow may be another test and probably the most important one. In this case I think both the tender age of the widow, and the fact that she has not reached the age of puberty, make it perfectly clear that she was not competent to know what she was doing. If we were to hold that such a person could adopt, we should open the door to all sorts of intrigue, so that the elder members of the family might be able to induce widows of tender age to make adoptions in the interest of those persons.
The adoption in that case was held invalid.
The next case is the one reported in Parvatava v. Fakirnaik, ILR 46 Bom 307 : AIR 1922 Bom 105. The age of the girl was proved to be about 12 1/2 years. The judge of the Court below in that case upheld the adoption on the reasoning that 'if the High Court has decided that a girl of about 15 years could validly adopt, it follows that one of 12 1/2 years could also validly adopt; because between the two girls, capacity to understand such things cannot be substantially different. This line of reasoning was rejected as untenable by the High Court with the following observations:
'I regret I cannot agree with the logic of that decision. The intelligence of a young person in ordinary circumstances will keep on growing year by year, and if the High Court laid down the limit of years of discretion as 15, it certainly would not follow that a girl of 12 1/2 would have attained to the same degree of discretion as a girl of 15. If once you depart from the limit of 15 which of course is purely an arbitrary one, then it could be easy to go back to any extent which would be absurd. But certainly I should not be disposed to think, taking all the considerations and circumstances and conditions of people of this class into account, that a girl younger than 15 could possibly exercise that volition of mind and that independence of judgment which would enable her to make a really valid adoption.' Then later on the learned Judge observed as follows :- 'It is not entirely a question of intelligence. A girl of 12 may be exceptionally intelligent, but it is more a question of her power to resist the influence which her elders will exercise, and must naturally exercise, over her actions. However intelligent she might be, she would not be likely to withstand the inducements put forward and the persuasion exercised in order that she should adopt a person according to the wishes of her elders.'
Then again Justice Shah has observed as follows :-
'Without attempting to lay down any general rules as to whether at that age a girl could ever make a valid adoption, it seems to me clear that in the absence of any clear evidence as to the special capacity of this girl to exercise an independent Judgment at that age, I am not prepared to hold that she could exercise such judgment as is required in the case of adoption.'
13. The matter again came up before this Court in the case reported in Ghanashyamdas v. Laxmibai, AIR 1922 Bom 218. Chief Justice Macleod referred to the decision in : AIR1919Bom107 Incidentally the age of the girl in that case was 17 years, and it was observed:
'Therefore that case is clear authority for the proposition that in the case of a Hindu widow of immature age, the Court is bound to consider all the circumstances surrounding the adoption set up, which she disputes as not having been made by her of her own free will; and it is difficult to imagine a stronger case than this, in which the adopted son is the son of a certificated guardian. We should have thought ourselves that the onus would certainly lie on the plaintiff to satisfy the Court that all the precautions had been taken which were necessary to satisfy the Court that the adoption was made with the free consent of this girl.'
14. Mr. Chandurkar the learned counsel for the appellant has strongly relied on a still later decision of this Court reported in Mallangouda v. Dundapagouda, AIR 1932 Bom 529. In AIR 1922 Bom 218 the age of the girl was 16 years and 8 months at the time of adoption. In AIR 1932 Bom. 529 the age of the girl was proved to have completed 15 years at the time of the alleged adoption. The learned Single Judge, after referring the earlier cases observed as follows, as regards the duty of the Court in adjudicating on the validity of adoption in these cases :
'...... It is the duty of the Court to satisfy itself that the adopting widow who is hardly more than a young girl and hardly out of her teens made the adoption voluntarily and of her free will and after fully understanding the results of the adoption.
Then later on it is observed at pages 330 and 531 as follows :-
'In my opinion, these principles (i. e., the principles laid down in 7 HCR 1 are in accordance with the Hindu law. It has been stated that the adoption of a son, however, beneficial it may be to the soul of the deceased husband, is not absolutely necessary for the spiritual benefit of the widow, and, on the other hand, it is highly detrimental to her temporal interests as it results in divesting her estate. A very high authority has expressed an opinion after referring to the case in 7 HCR 1 that an adoption by an infant widow if not ab initio void, is void in law. Of course, it is true that as a matter of law, there is nothing to prevent a widow who is not sui juris from adopting and that the nonage of a widow is not an obstacle to an adoption by her. In this case it is even doubtful whether the widow was major according to the Hindu law, for there is some difference of opinion as to whether minority in the Hindu law ends on the completion of the 15th year or on the completion o the 16th year. To hold that an adoption in which an infant widow is caused to take part mechanically is valid in law would be legalising a pious fraud, because in the case of such an adoption it cannot be said to be an act of the widow, but must be an act of those who surround her and are in a position to dominate her will.'
After referring to the way in which the Court below approached the question, the learned Judge observed as follows:-
'It is clear to me on his judgment that he has not applied his mind to the principles to which I have referred, viz., that it is the conscience of the Court that has to be satisfied in the case of an adoption by an infant Hindu, widow on the question that she was acting as a free agent and further that she understood and was made to realise what difference it would make to her position from a temporal point of view if she made the adoption.'
15. On a review of the above authorities, therefore, it is clear that the question that has to be decided by the Court in adjudicating on the validity of the adoption when the adoption is alleged to have been made by an immature girl of teen age, is whether the circumstances have been established which proved that the adoption must have been made by the girl of her own free will without being influenced by the decision of
the interested parties and after fully and consciously being made aware of the consequences of her act.
16. Mr. Deshpande for the respondent naturally relies on another decision of this Court reported in : AIR1942Bom284 In that case one Bhanudas, who was proved to be a boy of about 14 1/2 years of age and was ill for about two years prior to his death was alleged to have effected an adoption. The suit was brought by the adopted son for possession of certain property. One of the issues raised was, whether Bhanudas had acquired the necessary mental development and state of health that he was capable of understanding the nature and consequences of the act of adoption and whether the adoption was his own act or was it the result of undue influence exercised on him by other persons. It is clear from the report that evidence was led of witnesses who deposed that they questioned Bhanudas and satisfied themselves that Bhanudas himself desired to make the adoption. There were other witnesses examined whose statement was accepted that Bhanudas had told them of the adoption beforehand and asked them to come for adoption. It was also established that Bhanudas had himself written the adoption-deed which contained a recital to the effect that he was suffering from heart-disease and that there was no telling what eventually might take place and therefore, in order that his line might continue, he had asked the father of the adoptive boy to give him in adoption and that he had consented. It was also established in the case that after the adoption Bhanudas made an application in his own hand to the Collector to the effect that he had no progeny and that he had taken in adoption one Anant and that he should sanction the same. It was argued on behalf of the persons contesting the adoption that these statements were unnatural to be attributed to the boy of fourteen years. In that context reference was also made to the previous decision of this Court 7 HCR 1. While referring to that decision the learned Judge observed as follows :-.
'It has been laid down in 7 HCR 1 and in several other cases that where an adoption by a young Hindu widow is set up against her, and to defeat her rights, the Court will expect clear evidence that at the time she adopted she was fully informed of those rights, and of the effect of the act of adoption upon them; and if it find that fraud or cajolery was practised upon the widow to induce her to adopt, or that there has been suppression or concealment of facts from her, it will refuse to uphold the adoption. We have no do-sire of course to throw the slightest doubt upon, these principles, but we doubt whether such considerations have very much force in the case of an adoption by a boy. The minor girl has everything to lose. Instead of being the owner of the estate for her life time at any rate, she becomes a mere dependent. There is obviously a great temptation for interested persons to put pressure upon her. Such questions cannot arise in the case of a boy who is dangerously ill and knows that he is not likely to live very along.'
Thus it is apparent that the decision in : AIR1942Bom284 does not detract to the slightest degree-from the necessity of caution that has to be administered and which is required to be followed by the Courts as laid down in the decision of this Court in 7 HCR 1. In my opinion, that is still good law which is binding and has to be followed in determination of similar questions. Mr. Deshpande has argued that the decision in : AIR1919Bom107 was approved. What has been stated about that decision is as follows :-
' : AIR1919Bom107 is a, case of adoption by a widow whose age is given as about fifteen. It was held that the adoption was valid because the widow had at the date of the adoption attained sufficient maturity to comprehend the nature of the act. Sir Basil Scott after referring to ILR18 Cal 69 said 'Similarly in the present case there is nothing to show that at the date of the adoption in July 1912 Basava had not attained sufficient maturity of understanding to comprehend the nature of the act. In fact she was about fifteen years of age, and there is no reason to presume that a Hindu girl of that age who has been married for two years-or more, living with her husband, does not realise what is meant by taking a son in adoption. Clearly, therefore, discretion was treated as a matter of fact to be determined on the evidence.' It is argued by Mr. Deshpande that the ratio of the decision of this Court in : AIR1919Bom107 is that once it is established that a girl who adopts has attained the age of fifteen there necessarily follows presumption in law that she had attained the age of discretion. In my opinion, that will not be the correct interpretation of that decision. In any case it has to be further established, as laid down by the decisions of this Court in several cases referred to above, that the burden is still on the propounder of the adoption to prove that the act of adoption by the girl of immature age was a conscious act and that the duty lies on the person who claims the status of an adopted son to satisfy the conscience of the Court that the adoptive mother was a willing party or that she fully understood the consequences of her act. Thus it is not merely necessary to prove the age of the adoptive mother and to infer from proof of the age that the mother must be deemed to have attained the age of discretion, the girl must be held to have taken the boy in adoption after duly considering the consequences of that act or that it must be held that she was a free agent to do as she liked without her decision being fettered or influenced by the surroundings. I find it difficult to accept contrary contention in view of series of decisions of this Court and especially AIR 1922 Bom 218 and AIR 1932 Bom 529 where admittedly the age of the girl who adopted was more than 15 years.
17-18. Thus if it is necessary to establish the validity of adoption to prove that the act of adoption was a conscious act of the adoptive mother as she was a person of immature age of understanding, I find it difficult to uphold the adoption in this case. The defendant has led no kind of evidence whatever. No relations of the defendant have gone into the witness box and no explanation is given why no such evidence was led. There was a specific plea raised in the plaint that, the adoptive mother was a girl of mature (immature?) age, and her age was put down as 10 or 12 years.. Apart from the fact that the defendant has failed to prove the exact age of Mathurabai at the time of the alleged adoption, the defendant's case suffers from further infirmity that there is no material placed on record even to suggest that Mathurabai was made aware or that she was aware of the consequences of the act of adoption. It is said that Mathurabai is dead. This may or may not be a fact. But there is no reason why the natural father of the adoptive son or the other widow, viz., Dhrupatabai who is supposed to have consented to the adoption and taken a sufficiently important part at the time of the adoption was not called in evidence to support the case of the defendant. It is admitted that the adoption was secret affair so far as the plaintiff is concerned. No explanation is given why the act of adoption was kept secret from the plaintiff. If either of the widows of Baliram had a right to adopt then whether the plaintiff opposed the adoption or not, there was no reason to keep the plaintiff in dark or ignorance. Mr. Deshpande has relied upon certain circumstances indicating, according to the respondent, that Mathurabai must be a willing party to the adoption. It has been urged that in the proceedings for mutation which followed soon after the adoption, Mathurabai made a statement before the Naib Tahsildar that she had adopted Gulabrao (Bajirao). Now this statement is supposed to be proved by Exh. D-5. A perusal of Exh. D-5, however, shows that the so-called statement of Mathurabai is a composite statement of Mathurabai and Dhrupatabai, and the age of Mathurabai is shown as 18 years and that of Dhrupatabai as 22 years. It is not the defendant's case that Mathurabai was 18 years of age at the date when her statement was recorded. Moreover, the statement is recorded as if it referred to some other person making a statement and not as a statement coming from the mouth of Mathurabai at all. I am not satisfied that this statement was in fact either the statement of Mathurabai or that Mathurabai was actually produced before the Court when the statement was recorded. In the first place it is joint statement, and the statement may well have been made by Dhrupatabai. Thus the description of Mathurabai as a person of 18 years, and a failure of the tahsildar to record the statement as a personal statement of Mathurabai throws a certain amount of doubt as to whether this statement can at all be said to be a statement of Mathurabai. Mr. Deshpande then relies on the order in the mutation case as showing that Mathurabai had affirmed the adoption in the mutation proceedings. There is no means of ascertaining the correctness of this contention. The defendant has not filed on record any application made by Mathurabai. In this context omission of the relations of Mathurabai or the adopted son to enter the witness-box assumes certain significance. If these are the only circumstances or acts on which defendant relies as pieces of subsequent conduct showing that adoption was accepted by Mathurabai, it must be held that this evidence is of no assistance, and the defendant cannot be said to have discharged the burden which lay on him to satisfy the conscience of the Court.
19. Mr. Deshpande also relies on the statement of the scribe of the adoption deed in para 7 where he stated that he scribed the adoption deed on being told by both the widows and on the statement of the attesting witness D. W. 3 that they willingly put their thumb-mark on the deed of adoption. Now it is inconceivable that in the presence of other adult persons in the family and the attesting witnesses the father of the adoptive boy would refer to the girls, and specially Mathurabai, for dictating the text of the adoption-deed. This evidence hardly merits any consideration. Similarly the statement of the attesting witness that the widows stated that they were willingly executing the deed of adoption is not the kind of evidence that inspires confidence. It is not the fact of execution of the adoption-deed that has to be established. What has to be established by the defendant is that the act of adoption was a conscious act, that the adoptive mother knew the consequences of that act, that she was uninfluenced by any interested person in changing the course or devolution of the property or depriving her of her rights in the property by any person taken in adoption. There is not an iota of evidence and probably this is because the defendant may not be aware that such a burden lay on him to establish this fact. Whatever the reasons may be, the fact remains that there is no evidence on record from, which conscience of the Court can be satisfied that the act of adoption which was alleged to have been made by Mathurabai was conscious act or that it was uninfluenced by other interested persons. When this state of evidence was pointed out to Mr. Deshpande, the learned counsel for the respondent, he made an oral prayer that he should be given an opportunity at this stage to lead evidence to prove that Mathurabai took the boy in adoption of her own free will. I arn afraid it is not possible to accede to this request at this stage as it will mean merely opening a door for introducing perjured evidence to the prejudice of the parties. I decline to give any such opportunity. It was also requested that the defendant had omitted to place on record evidence connecting Exh. D-8 with the date of birth of Mathurabai and that he should be given an opportunity to make good that lacuna. I have declined to accede to this request either as, in my opinion, the defendant is not entitled at this stage to any such indulgence.
20. Thus differing from the Courts below I have come to the conclusion that the defendant has failed to establish that he was validly adopted and that the act of adoption by Mathurabai was a conscious act on her part in view of the tender age at which admittedly the adoption was made.
21. The result is that the judgments and decrees of the Courts below are set aside and the plaintiff's suit is decreed with costs against the defendant in all the Courts.
22. Appeal allowed.