1. The only question argued in this appeal is whether defendant 1 is the adopted son of one Fakirraddi Bhimaraddi. The facts giving rise to the suit from which this appeal arises may be shortly stated.
2. One Fakirraddi Bhimaraddl was a resident of Siddapur in the Dharwar District. He was the owner of the property in suit. He married one Kamalawa, who is the present plaintiff, in or about the year 1936. Prom the plaintiff Fakirraddi had two daughters. In the beginning of 1944, he took one Somavva as his second wife. In November 1944, Fakirraddi was taken ill.
He was suffering from fever and he died on 38th December 1944 soilless leaving him surviving his mother Yellavva, two widows, Kamalawa and Somavva, and two daughters who are present appellants. It is the case of the 1st defendant that he had been adopted by Fakirraddi on 12-12-1944 and his case further is that his widow, Kamalawa, executed in his favour a deed of adoption on 28-12-1944. The plaintiff, Kamalawa, disputed the factum of adoption and also disputed the fact that she had executed in favour of the 1st defendant a deed of adoption on 28-12-
On the same day, that is, 28-12-1944, Kamagave information to the village officers asking that as defendant No. 1 was the adopted son of Fakirraddi, his name should be entered in the Govt. record. This is disputed by the plaintiff who says that she gave no such vardi or information.
On 23-1-1945, the plaintiff. Kamalawa gave another vardi stating that her husband, Fakir-raddi, died on 18-12-1944, that he had no male issue and that she being the direct heir, her same should be entered in the Record of Rights. There was then an Inquiry and the inquiry resulted in favour of the 1st defendant whose name was entered in the Govt. record. This was in or about August 1945.
3. On 24-8-J945, the mother Yellavva, the widow, Kamalawa, and one Ningappa filed suit No. 262 of 1945 against four persons including the present defendant No. 1, who was defendant . No. 2 in that suit and the present defendant No. 2 who was defendant No. 1 in that suit and two others, claming a declaration that defendant No. 2, that is, the present defendant No. 1 was not the adopted son of Fakirraddi and they claimed an injunction restraining the defendants from Interfering with the plaintiff's possession and enjoyment cf the suit property.
The trial Court decreed the suit, granting the plaintiffs a declaration that the present defendant No. 1 was not the adopted son of Fakirraddi. This was in October 1946. It appears that there was from this decree an appeal in the District Court and the appellate Court remanded the proceedings to- the trial Court for a fresh hearing and upon the fresh hearing the learned Judge of the Court below dismissed that suit on 51-3-1950.
4. in the meanwhile, the plaintiff, Kamal-Rwa, commenced this suit against six defendants on 23-4-1949 impleading defendant No. 1, the alleged adopted son. defendant No. 3, the elder brother of defendant No. 2, defendant No. 4, tne mother of Fakirraddi and two others and claimed to recover possession of the . property in suit.
The plaintiff's claim was upon the basis that defendant No. 1 was not the adopted son of Fakirraddi and that she, as the widow, was entitled to inherit her husband's property. It may be mentioned that Somavva, the other widow of Fakirraddi remarried soon after the death of her husband, Fakirraddi.
5. Defendant No. 1 resisted the plaintiff's suit and asserted that he was the adopted son of Fakirraddi, having been adopted by him on 12-12-1944 and that by virtue of his adoption he had become the owner of the suit property. The contentions of defendant No. 2 were similar.
By a Purshis defendant No. 2 adopted the contentions of defendant No. 1. Defendant No. 4 did not take part in the proceedings although she gave evidence at the trial. Defendants Nos. 5 and 6 were deleted from the record.
6. The learned trial Judge dismissed the plaintiff's suit, holding that the adoption of defendant No. 1 was proved and that the plaintiff did not prove her title to the suit property.
7. From the decree made in the suit, the plaintiff appealed and while the appeal was pending, the plaintiff, Kamalawa, died on 4-12-1950 and she is now represented on the record by her two daughters.
8. The question for decision is whether defendant No. 1 is the adopted son of Fakirraddi.
9. Now a person wishing to displace the natural succession to property by his adoption has to affirmatively prove his case. In the present instance, the plaintiff would be entitled to succeed to the property of her husband, Fakirraddi, in the absence of the adopted son. On the other hand, if the adopted son were to establish his adoption, he would succeed to the property of his adoptive father.
The dispute, therefore, between the parties is as to whether the plaintiff as the heir of her husband is entitled to succeed to the property of her husband or whether defendant No. 1, as the adopted son, is entitled to succeed to the property. And in the case of such a dispute, the principles' governing the determination of the question are well settled. In Mahadeva Royal v. Virabasava Chikka Royal their Lordships of the Privy Council have observed:
'A very grave and serious onus rests upon any person who seeks to displace the natural succession of property by alleging an adoption. In such a case the proof requires strict and almost severe scrutiny.'
To the same effect is the decision of their Lordships of the Privy Council, which Mr. Mur-deshwar for the appellant has pointed out, Padmalav Acharlya v. Fakira Debya , in which their Lord-ships of the Privy Council have observed: (Head note)
'Where a person relies on his adoption, in answer to a claim by a Hindu widow, to recover her deceased hushand's estate from him, it is incumbent on the Court to satisfy itself that the factum of the adoption is established by clear and satisfactory evidence, free from all suspicion of fraud and so consistent and probable as to leave no occasion for doubt of its truth. The necessity for evidence of this unimpeachable character is all the greater in the absence of any contemporaneous evidence of the adoption either in a deed of adoption or by entries in family accounts which ought to have been forthcoming'.
In making these pronouncements, their Lordships of the Privy Council have referred to their earlier decision in Diwakar Rao v. Chandan-lal Rao AIR 1916 PC 81 (C) which establishesthe same principle.
In the recent decision of their Lordships in Muthuswami Thevar v. Chidambara Thevar , they have observed. 'The burden of proving an adoption rests on him who asserts it; and the burden is a heavy One.' It is in the light of these principles that one has to approach the consideration of the evidence in this case.
10. Now, at the outset, a few facts which clearly appear on the record, may be set out. At the time of his death in 1944, Fakirraddi was a young man aged about 28. It cannot be said, therefore, that he had reached an age when he had despaired of having a son. He had married Kamalawa in or about 1936 and he had from her two daughters. He had unfortunately no son. But he had married Somavva, the junior wife of his, only in the beginning of 1944.
It would look as if that Faldrraddi was then in circumstances when he could not reasonably hope not to have a natural son. He had been taken ill and the period of his illness has been variously described. It is said that he was suffering from fever for about 2 or 3 months. It is also suggested that he was suffering from fever for a month and half; and making every allowance for exaggeration on either side and making allowance for over statement and under statement on the two sides, it may be stated that he was suffering from feVer in or about November 1944.
As he was suffering from malarial fever, it cannot be said either that he was suffering from a very serious illness. But defendant No. 1's case is that he was adopted on 12-12-1944, six days before his death which occurred on 18-12-1944. If Pakirraddi was not suffering from serious ill. ness, it cannot be said that he had lost hope of his life and that he would accordingly want to make an arrangement of an heir to his property.
But the fact remains that he died on 18-12-1944 and if shortly before his death, he thought of adopting a son to himself, it would not, I think, be said to be an improbable or unusual thought, which would occur to him. One has to bear in mind that he had two wives and also a mother and in a family consisting of two wives and a mother, the question of adoption is not always easy after the owner's death. Looking, therefore, to the probabilities of the case, if Fakirraddi; thought that he should make some arrangement by way of an adoption, it cannot be suggested that that would be a highly improbable idea of his.
Then again if the 1st defendant was adopted on 12-12-1944, it was not difficult for Fakirraddt to have a deed of adoption executed on the same day. It is common knowledge that there is nearly always a contemporaneous deed of adoption to evidence the fact of adoption. But in this case it is said that the deed of adoption was executed on 28-12-1944, that is, on the tenth day following the death of Fakirraddl, which occurr. ed on 18-12-1944.
There is this, therefore, in favour of Mr. Mur-deshwar's contention that Fakirraddi was young, that he had two wives from whom he hoped or expected to beget a son and that as Fakirraddi was not seriouly 111,- it is improbable that he would think of making an adoption to himself.
As against this, there is this fact in favour of the 1st defendant that Pakirraddi died on 18-12-1944 and if shortly before his death, he thought of making an adoption, it would not be unusual idea in his mind looking to the fact that in his absence the family would consist of two widows and a mother. Something can be said, therefore, in favour of either of the two views. But there are certain other circumstances to which I will presently refer.
11. Now the burden being upon the 1st defendant to prove his adoption, the 1st defendant seeks to establish the adoption fay proving giving and taking by the evidence of persons, who were present at the time of adoption. The 1st defendant also relies upon the deed of adoption executed by the plaintiff, Kamalawa, on 28-12-1944.
Further, he relies upon the vardi given by her to the village officers on the same day, that is, on, 28-12-1944. The parties being Raddis, it is enough to constitute a valid adoption if there is evidence of giving and taking. It is not suggested that any, religious ceremony is necessary. -
If, therefore, the evidence of giving and taking is believed, it is easy to conclude that the 1st defendant has proved the factum of his adoption.
12. Now, the case presents some difficulty. At his death there lived in the family only his own mother Yellavva who is defendant No. 4. Yeliavva's evidence is that there was no adoption. The evidence of Yellavva as well as of Kamalawa is to the effect that neither of the two wives of' Fakirraddi was present in his house at the time of his death.
The evidence of Kamalawa is that she had gone to her parent's house for confinement and she was away for about a year. If Fakirraddi was ill for a month and a half or for two months and was suffering from fever, it is hard to believe that neither of the two wives would be present in the house as is alleged on behalf of the plaintiff. Somavva had been married to Fakirraddi only in that year, that is, in 1944.
And speaking for myself, I am hot prepared to accept the evidence of Kamalawa and of Yell-avva that Kamalawa was not present in the house of her husband at the time of his death. One may . ask the question as to why it is that if there was an adoption. Yellavva should say that there was in fact no adoption. This is a question which Mr. Gumaste for the 1st defendant was unable to answer and the reason is obvious,
Yellavva was not the heir to the property of her son. The heir to the property was Kamalawa and there is no reason why Yellawa should give false evidence if there was in fact an aaoption on 12-12-1944. This is again a circumstance in favour of Mr. Murdeshwar. There is another circumstance in favour of Mr. Murdeshwar. According to the 1st defendant, the deed of adoption was executed on 28-12-1944 and the deed was attempted to be registered on the same day.
The evidence given on behalf of the defendants is that although the parties went to the Sub-Registrar's office, it was not possible to, have the deed registered because the office of the Sub-Registrar was closed. 28-12-1944 was a Thursday and there is no suggestion that it was otherwise a holiday. But it appears from the record that upon an inquiry made by the Court; the reply from the office was that while the office of the Sub-Registrar was not closed, the documents were not registered on that day and the Sub-Registrar was on casual leave, his casual leave covering a period from 27-12^1944 for 7 days.
Further this is also in favour of Mr. Murdesh. war that if it was not possible to have the document registered on 28-12-1944, there is nothing to show that there was any attempt made by the parties to have it registered on any subsequent day. The evidence led by the first defendant is that it was not possible to have the document registered after 28-12-1944 because the plaintiff, Kamalawa left her husband's house and subsequently went to reside with her parents at the parents' house.
The fact, therefore, remains that there was no attempt made on the side of the defendants to have the document registered if in fact the deed of adoption was executed voluntarily by Kamalawa on 28-12-1944.
13. But while these are weighty considerations, to constitute a valid adoption, it is enough if there is giving and taking. The deed of adoption does not constitute substantive evidence to prove the adoption. The deed of adoption affords merely corroborative evidence about the factum of adoption.
It is not the deed which confers upon the adopted son the title to the property, but it is the factum, that is, the giving and taking, which confers upon the adopted son the status of a son. This being the. position in law, one has first to look at the oral evidence which the first defendant has led in support of the factum of adoption.
(His Lordship then discussed the oral as well as documentary evidence. The judgment then proceeds:--)
14. it is quite true that there are certain circumstances in favour of the plaintiff. It is also quite true that there are other circumstances in favour of the 1st defendant and if the case merely rested upon circumstances, the case may be one of nice balancing of circumstantial evidence in the case. But here there is more in favour of the 1st defendant and that is the evidence about giving and taking.
Now, the adoption so far as giving and taking is concerned is a simple affair. One can collect six witnesses and show that an adoption had taken place. The person giving in adoption. says that he gave the boy in adoption and the person taking in adoption says that he took the boy in adoption and that is all that is necessary to constitute the adoption.
As I have said, whatever may be said about the evidence of the 2nd defendant as being interested testimony, there is the evidence of the witness from Jagapur, Dharamaraddi, which evidence is independent. There is the further fact that the 1st defendant took the funeral fire immediately after the death of Fakirraddi. Taking all these circumstances into consideration, we think that all the balance of evidence is in favour of the 1st defendant.
At the most, the plaintiff may say that the case is equally balanced. But in appeal, it is for the appellant to show that the judgment of the Court below is clearly wrong. It is not enough for Mm to show that the judgment may be wrong by merely pointing out that the judgment may he just the other way.
We accept the oral evidence of giving and taking and further, we accept the evidence about the deed of adoption being voluntarily executed by the plaintiff and also about the information given by the plaintiff on the same day. The totality of the evidence is that the adoption of the 1st defendant is amply proved and in view of this conclusion the plaintiff's claim must fail.
15. Mr. Gumaste presses for costs. But this is a case between near relations. The plaintiff was the adoptive mother of the 1st defendant and the present appellants are his sisters by virtue of his adoption. As the dispute is between near relations it is but fair that the parties should be asked to bear their own costs.
16. The' result, therefore, is that this appeal fails but there will be no order as to costs.
17. Appeal dismissed.