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Tarabai Bhimgonda Patil and ors. Vs. Babgonda Bhau Patil and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai High Court
Decided On
Case NumberSecond Appeal No. 579 of 1971
Judge
Reported inAIR1981Bom13; 1980MhLJ566
ActsHindu Law; Shastric Law; Income-tax Act; Evidence Act - Sections 112
AppellantTarabai Bhimgonda Patil and ors.
RespondentBabgonda Bhau Patil and ors.
Appellant AdvocateH.D. Gole and;B.G. Vaidya, Advs.
Respondent AdvocateP.L. Naik, Adv. for;M.A. Rane, Adv. and;M.A. Garud, Adv.
Excerpt:
.....exclude defendant from inheriting property of deceased for reason that defendant was born prior to date of adoption of deceased - evidences shows that defendant had been conceived at time of adoption - said evidence specifically refutes plaintiff's contention - actual date of birth of defendant proved to be after adoption of deceased - child born to deceased after his adoption entitled to rights and privileges of adoptive family - suit for exclusion of defendant not allowed. - - good reasons exist to act upon that certificated entry, particularly because a summons was taken out to produce the original and the public officials reported the non-traceability of the register, merely because the plaintiffs produced the two letters at exs. this gift-deed is of august 10, 1949. this..........entry cannot be ignored. there is yet another document which goes to substantiate the date of birth borne out by ex. 172 and that is the gift-deed produced at ex. 155. in the said gift-deed, bhau anna patil has stated that he was given in adoption in 1912 and at that time his wife was in 7th or 8th month of the pregnancy. this gift-deed is of august 10, 1949. this narration in the gift-deed made by bhau anna patil clearly goes to show that at the time of the adoption, babgonda was in the womb of his mother and was not born and must have been born, as is concluded by both the courts below on the basis of ex. 172, on october 10, 1912. we see no reason to take any other view of the facts in this regard.7. having concluded the facts in this manner, the short question that remains is.....
Judgment:

Masodkar, J.

1. This is the original plaintiffs' appeal that questions the concurrent judgments rendered by the Courts below in the suit initiated by them for the purpose of recovering property on the basis that upon the death of one Bhau Anna Patil on August 13, 1958, the plaintiffs inherited the same as the nearest heirs of the deceased. This entitlement was based on some undisputed facts and upon certain disputed, controversy.

2. The claim to the nearest heirship to the deceased Bhau Anna Patil was based on the following genealogy:--

SAVANTA|------------------------------------| | |Appa Laxman Ramgonda(died in 1912) | || -------------- | Kausablal Bhau | | |(Adoption on Bhimgonda Ramgonda | 26-6-1912) (Pltff.1) (Pltff.2) |(Died on 18-8-1958) |Nomgonda| (Died issueless)Baggonda(Deft. 1)

The plaintiffs set up the claim that they are the only sons in the family claiming through Laxman and upon the death of Bhau, would be entitled to inherit allthe estate of Bhau. They sought to exclude defendant No. 1 Babgonda from the family on the basis that Babgonda was born prior to the date of adoption, that is, prior to June 26, 1912 and, therefore, Babgonda would not be entitled to succeed to Bhau, he being the member of the natural family prior to the adoption of Bhau.

3. On the controversy, both the Courts below found concurrently that Babgonda was born not prior to June 26, 1912 but on October 10, 1912, as is evidenced by the certified copy of the extract of the Birth Register produced at Ex. 172. However, they accepted that on the basis of this date of birth, Babgonda was conceived while the adopted Bhau was still the member of his natural family. Applying the decision of this Court in Advi Fakirappa v. Fakirappa Adiveppa (1918) ILR 42 Bom 547 : : AIR1918Bom168 the two Courts below dismissed the suit holding that Babgonda was entitled to inherit the property left by Bhau Anna Patil.

4. On the aspects of facts, Mr. Gole, has strenuously argued that the Courts below have committed errors of law in concluding the facts in this manner placing reliance on the certificated entry of the Birth Register produced at Ex. 172, particularly when it was shown by the plaintiffs that there was everything to doubt about its genuineness, and he has referred to the letters produced at Exs. 186 and 187 for contending that as the original was not produced, the entry at Ex. 172 could not have any probative value. In the submission of the learned counsel, this is an error of law and the judgments are liable to be reversed. Secondly, it was submitted that defendant No. 1 did not enter the witness box and an adverse inference ought to have been drawn, particularly because on the earlier occasion before the Revenue Authorities he had given an admission and unless that admission was explained, the Courts below were not right, firstly, in not drawing the adverse inference and, secondly, in not giving effect to the said admission. For this reason, according to the learned counsel, the Judgments are infirm. Lastly, it was contended that the judgment of this Court rendered in Advi Fakirappa's case : AIR1918Bom168 should be reconsidered, for it does not lay down the correct legal rule.

5. Now, as far as the first two aspects are concerned, in our considered judgment, they do not raise any question oflaw. Whether a particular person was born prior to a particular date is a pure question of fact. In this case, the issue of fact was as to whether prior to the date of adoption, that is June 26, 1912, defendant No. 1 Babgonda was born. Such a question has to be decided on the basis of the evidence tendered by the parties. No doubt, the drawing of an adverse inference against a party is a rule of evidence, but, nonetheless, a rule for the purpose of appreciating and deciding the controversy. The plaintiffs having come to the Court with the case that defendant No. 1 Babgonda was born prior to June 26, 1912 had to discharge the onus in establishing that fact. The non-examination of defendant No. 1 Babgonda in such a controversy can hardly substantiate the plaintiffs' case, for defendant No. 1 whose date of birth is in issue can hardly be the person who can possess the knowledge about the date of his own birth. He can at the most be a witness to ancillary and accessory facts. The non-examination of defendant No. 1 in such a controversy would not entail drawing of any adverse inference. Mr. Gole is not right that in the earlier proceedings before the Mahalkari, about the fact in issue in the present controversy there is any admission given by defendant No. 1 Babgonda. The statement before the Mahalkari, which is reproduced in the trial Court's judgment in paragraph 9 is not categorical ,nor can it be an admission at all of the fact that Babgonda had admitted that he was born prior to June 26, 1912. In fact, in that statement there is no reference to the date of birth, which is in issue in the present controversy. The statement asserts in the context as to when Bhau Anna Patil died and who is the heir of Bhau Anna Patil. The deponent has asserted in the said statement that he is the son of the deceased Bhau Anna Patil, since prior to adoption, but it is apparent, if the statement is read in the context, that the deponent has stated that Bhau Anna Patil was his father who was taken in adoption before 40 years by Anna Savant and at the time of the adoption, the deponent was just a child and Bhau Anna Patil is dead and at the time of the death, he left no heir as his wife was also dead and the deponent himself is the only son. In our view, at the most, this is a mere assertion of a status claiming right and entitlement of the son of Bhau Anna Patil and is not an admission with regard to a particular date of birth. Such a statement, therefore, cannot be conclusive of the fact in issue about the present controversy, more so when it is the plaintiffs who have come with a particular case that Babgonda was born prior to June 26, 1912 and they are called upon to establish the same.

6. Now, turning to the other aspect, the matter rests purely in the realm of appreciation of evidence and both the Courts below have appreciated the evidence and rightly concluded that Ex. 172, which is the certified copy of the birth certificate, can be acted upon. Good reasons exist to act upon that certificated entry, particularly because a summons was taken out to produce the original and the public officials reported the non-traceability of the Register, Merely because the plaintiffs produced the two letters at Exs. 186 and 187, the certificated entry cannot be ignored. There is yet another document which goes to substantiate the date of birth borne out by Ex. 172 and that is the gift-deed produced at Ex. 155. In the said gift-deed, Bhau Anna Patil has stated that he was given in adoption in 1912 and at that time his wife was in 7th or 8th month of the pregnancy. This gift-deed is of August 10, 1949. This narration in the gift-deed made by Bhau Anna Patil clearly goes to show that at the time of the adoption, Babgonda was in the womb of his mother and was not born and must have been born, as is concluded by both the Courts below on the basis of Ex. 172, on October 10, 1912. We see no reason to take any other view of the facts in this regard.

7. Having concluded the facts in this manner, the short question that remains is whether for the purpose of succeeding or inheriting to the property of Bhau Anna Patil, Babgonda should be treated to have been born at the time of the conception or at the time of his actual birth. The rule in this regard, as far the principles of Hindu Law interpreted and applied by this Court are concerned, admits no doubt. Under the Shastric law of adoption, where a married person was given in adoption, such person's son at the date of adoption did not lose the gotra of his father, nor did he lose the right of inheritance in the family to which his father belonged prior to the adoption, though his mother, the wife of the adoptive person, passed to the adoptive family on the basis that the husband and wife formed one entity and one body. (See Kalgavda v. Somappa ILR (1909) 33 Bom 669, and Babarao v. Babarao AIR 1956 Nag 98. The legal result and effect, as conceived by the Shastric law, with regard to the adoption of a married person are clearly to the effect that the adoption of a married person results in making the wife of such an adopted person along with him the member of the adoptive family. In other words, when the adoption is of the married person, by reason of that both the husband and wife enter the adoptive family. If this be the Shastric law, which is not in doubt or dispute, it follows that the issue born after the adoption would be born to the persons, that is, the father and mother, who are the members recognised and properly admitted in the adoptive family. The fact of earlier conception, in our view, does not affect this position because what is relevant is the date of birth for determining the ties of the post-adoption-born-child with regard to the family in which he is supposed to be born. We would like to treat it as a general rule that where both mother and father belong to a given family by reason of law or as a result of a particular permissible legal device like adoption, the issue born would belong to the family of its parents. We cannot but emphasise that the legal effect of the device of adoption is replacement of all ties from one family to another family involving all the break for all purposes with regard to the family in which the adopted son was initially born. This process of substitution of family by reason of adoption does not admit any doubt on the text of Hindu Law or on the decided cases, From this it should follow as a corollary that whoever is born after the adoption to a married adopted son would be born in the adoptive family and not in the family prior to his adoption. After all, adoption in law has dual effects as far as familial relations are concerned. These are of severance and of substitution, severance from the family wherein the adopted son was born or to which he belonged and substitution of his in the adoptive family wherein he because of adoption was transplanted. Both of these have definitive legal consequences. Whatever belonged to earlier natural family is left out then and there and whatever is or begets in the adoptive family is annexed, attached or acquired. This applies to juridical as well as natural effects, including the status of the pre-born and post-born offsprings, the former remaining in the earlier family while thelatter being born in the adoptive family.

8. Reliance placed by Mr. Gole on the specific doctrines with regard to the rights of Hindu coparceners in the matters of alienations and partitions and for that purpose, taking the anterior point of conception as the beginning of the existence of the coparcener can hardly be treated relevant or decisive of the present question. These are the matters with regard to the specific subjects and we find no difficulty in working out even these principles once we give effect to the fact that the date of birth is the decisive date with regard to the matters of inheritance in the adoptive family. For the purpose of other entitlement, like questioning alienations and claiming partitions, the other doctrines would be applicable, but that need not cloud the issue so as to find out in which family such a son is born. The matter can be looked into from different aspects so as to infer that the date of birth and not the date of conception should only be determinative in such matters. When the question of legitimacy of the son claiming paternity to a particular father is in issue, the pari materia principle is introduced by enacting the provisions of Section 112 of the Evidence Act having reference to the date of birth and not to the date of conception as determinative of the paternity of the son born during wedlock. These provisions are based on the pragmatic rule of prudence so as to protect the interest of the child so born. Offspring of a married couple by reason of the fact of the birth after marriage is treated to be of a legal parental of the husband unless it is shown that the parties to the marriage had no access to each other. It is obvious that those provisions refer to the point of time of the birth of the child as decisive so as to render it as a conclusive proof that the child is the legitimate son of the man married to the woman. (See Palani v. Sethu ILR (1924) 47 Mad 706 : AIR 1924 Mad 677. Once it is shown that a child is born during the continuance of a valid marriage, it is conclusive proof that such a child is the son of the woman's husband. (See Thandi Ram v. Jagan Nath AIR 1937 Lah 784. The principle underlying Section 112 of the Evidence Act, which furthers the public and social policy so as to confer legitimacy on children born during the continuance of valid marriages, is a principle on which one can draw even to resolve such type of debates where the two points of referencesfor the purpose of determining the right of inheritance are being pressed in aid, one being the date of birth and the other being the date of conception. As a result of the proof of legitimacy, the right of inheritance just follows and for the purpose of determining legitimacy, the point of reference is the date of birth. By reason of that date, the rights in property are conferred on the legitimate child.

9. As we have indicated above, the transference brought about by the legal device of adoption has the effect of substitution of all familiar ties from one family to another, including the effect, when the adoptee son is a married person, of grafting such a married person with his wife into the branch of the adoptive family. Therefore, the marriage of both, that is, the adoptive son and his wife, is continued and is recognised for all purposes to be super-imposed and grafted into the adoptive family. We see no reason to treat the son born after such a graft not to be the part of the adoptive family but still treat him to be the part of the earlier family wherein his father had natural birth. That would lead to anomalies and inconsistency and some of them, which will be to the detriment of such children, have been imminently noticed by this Court in the case of Advi Bin Fakirappa v. Fakirappa Adiveppa ILR (1918) 42 Bom 547 : : AIR1918Bom168 , where this Court ruled, treating to be an exception to the general rule of jurisprudence, that in the interest of after-born child for all purposes of succession and inheritance his legal entity must be taken from the date of his birth. We think that it should be the general rule and not an exception because of the very legal result of the graft effected by the device of adoption of a married person into another family. All afterborns, when the married are recognised in the adoptive family, would be the members of that family with all the rights and privileges as such.

10. The decision, on which Mr. Gole relied, of the Supreme Court, being Guramma v. Mallappa : [1964]4SCR497 , is hardly in point. That was a case where the Court was considering the validity of the adoption itself on the basis of the prohibition set up to the effect that a son in the embryo of a co-widow should be treated as the son born in the family and, therefore, the adoptive entitlement and capacity of the co-widow was affected. We do not see how this case assists in resolving the issue before us, for in the present premises, the adoption is not in issue nor it is in dispute. On the other hand, while considering the matters of liability of tax under the provisions of the Income-tax Act, in the case of Srinivasan v. Income-tax Commissioner : [1966]60ITR36(SC) , the Supreme Court observed that the doctrine that Hindu undivided family comes into existence from the date a son is conceived is not of universal application and it applies mainly for the purpose of determining rights to property and safeguarding such rights of the son and the doctrine does not fit in with the scheme of the Income-tax Act. These observations indicate that the doctrine has specific applicative value and not a general premise of the law and has to be applied to the specific matters within the doctrine itself. It does not follow from the doctrine that even though both the father and mother after conception have been transferred to a different family, the conceived child will retain its ties only by reason of prior conception in the prior family which did not exist for the purposes of his father and mother when it actually takes birth. On the other hand, the principle underlying the doctrine will subserve by giving it the specific application as to when the questions are in issue as to the entitlement of the person so born in the given family and a point of reference has to be traced back in the very same family, there being meanwhile no legal transference and substitution by any other family, In the case of life, death is the certainty not so the birth. Birth is surely a biological event and, as far as evolution of human entity is concerned, is the apex phenomenal product of bi-sex relation. Conception and being in embryo is at the most beginning but not its full blossom. To be born is firstly to be biologically full and secondly free from the physical ties of the womb. As an entity, this physical delinking completes what begins in conception. Thus, though for certain specific purposes in law birth is traced back to its beginning, evidently, as an entity, human being is not born until its resurgence out of motherly womb. To be born is to be free. Time of that determines that date of the birth. Therefore, when we consider the legal premises we should consider and conceive the same primarily in the context of the biological event of the birthand determine the point of reference for the purpose of making the offspring the legal entity. Primarily, therefore, the date of birth should be determinative and specific doctrines should be available so as to refer back the biological event of actual birth to the anterior point of conception for working out the specific rights and privileges governed by the given doctrine, Therefore, only because there exists a doctrine under Hindu system of law wherein in certain cases the person is deemed to be born from the date of conception, it cannot be treated to be so in each and every case. The matter has to be decided keeping in view all other conflicting principles and arriving at a balanced synthesis out of them.

11. For the reasons stated above and particularly for the reason that in the eye of Hindu Law both mother and father as a result of adoption belong to the adoptive family, in the case when the adopted son is a married person, the child born after the date of birth during the continuance of such a wedlock would be the child born in the adoptive family with all the rights and privileges in that family.

12. In this view, we find no merit in any of the submissions of the learned counsel for the appellants. The appeal is dismissed with costs.

13. Appeal dismissed.


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