(1) This is an appeal by the plaintiff against the decree dated 11th July 1961, made by the Civil Judge, Senior Division Belgaum, dismissing his suit to recover the suit schedule properties as the adopted son of one Venkatesh.
(2) By his plaint dated 25th September 1958, he alleged that one Krishnaji was a Watandar Kulkarni of Holihosur in Bailhongal Taluk. He had two sons--Venkatesh and Shama Rao and a daughter by name Mathurabai, who is defendant 3 in the suit. Shama Rao died on 29th September 1941 without a male issue, Chimmabai defendant 1--is his wife, and Alakananda--defendant 2--is his daughter. Venkatesh was the sole surviving coparcener; plaintiff is related to Venkatesh, being the grandson of Ranga Rao, his maternal uncle. Venkatesh in order to continue his line and to obtain salvation, adopted plaintiff with the ceremonies on the 16th December 1941 and, on the same day, executed a registered deed of adoption. A photograph of the adoption ceremony was also taken. He thus became the adopted son of Venkatesh. Venkatesh died on 3rd December 1957, and after his death, he (plaintiff) alone is the sole surviving coparcener and therefore he is entitled to claim the entire suit schedule properties as the properties of his adoptive father.
(3) He also alleged that on 6th November 1943, Venkatesh executed two sale deeds--Exts. 196 and 193--in favour of defendants 2 and 3 respectively. By Exhibit 196, he conveyed the lands described in schedule 'B' in favour of defendant 1 of Rs.12,000. The said sale deed is without consideration and is not binding on him. By Ext. 193, he (Venkatesh) conveyed the lands described in schedule 'C' to the plaint in favour of Mathurabai, defendant 3, for Rs.11,000/-. That sale deed also is without consideration. He further understands that the said defendant 3 has passed a deed of gift in favour of defendant 2 in respect of some of the aforesaid properties. Those deeds are not binding on him.
(4) Plaintiff then alleged that the watan properties of his adoptive family were resumed by the government after the abolition of watans, and he is entitled to claim compensation payable in respect there of under the Watan Abolition Act. He also alleged that defendant 4 claimed to be an adopted son of defendant 1, but he has no interest in the property since his suit claiming a declaration that he is the adopted son of defendant 1, has been dismissed and his rights, if any, have been extinguished. The other defendants 5 to 24 are the tenants of the suit lands.
(5) I have stated the facts necessary for the purpose of this appeal since we are not concerned with the other facts alleged in the plaint. On these allegations, he claimed the possession of the suit schedule properties with mesne profits after annulling the said two sale deeds and the deed of gift. He also claimed a declaration that he has a right to recover compensation amount payable under the Watan Abolition Act.
(6) By their written statements, defendants 1, 2 and 4 contested the plaintiff's claim as an adopted son, and the reliefs asked for on that basis.
(7) Defendant 1, in her written statement, contended that her husband's family was a well-to-do family. She was not only Venkatesh brother's wife but also his niece, and even after the death of her husband Shama Rao, she was staying with Venkatesh and Mathurabai, who being a child-widow was also staying with them.
(8) Venkatesh had almost lost his eye-sight, and he being a Watandar Kulkarni and being a Palidar, was rendering service to the Government through his representative. On account of this infirmity, he remained unmarried. Venkatesh had absolutely no mind to adopt anybody. However, while she was at her parents' house at Dharwar, he was taken away to Dharwar by Narayan (father of the present plaintiff) and Ranga Rao (his grandfather), where Narayan was serving as Sub-Inspector of Police, on the pretext that the 'Jawal' or tonsure ceremony of the plaintiff was to be performed. Narayan and his father, taking advantage of his (Venkatesh's) presence there and the loss of his eye-sight, represented to him that the tonsure ceremony of the plaintiff was to take place at Venkatapur, a holy place. He was accordingly taken there and without letting him know the ceremony a ceremony alleged to be ceremony of adoption had been brought about and his signature to the adoption deed was also obtained. Narayan and Ranga Rao managed to get this document registered.
Even though Venkatesh appears in the photograph, alleged to be of the adoption ceremony, Venkatesh being almost blind, it could not be said that he posed for the photograph with the full knowledge that he had adopted the plaintiff or that the photograph was of the adoption ceremony. When it came to the notice of Venkatesh that he was deceived by these persons, he returned to Belgaum where they were staying and complained to her and Mathurabai about the fraud practised on him. Thus the alleged adoption has been brought about by practising fraud on Venkatesh by Narayan and his father. So the plaintiff cannot acquire the status of an adopted son of Venkatesh. Plaintiff never lived with Venkatesh nor did Venkatesh ever affirm during his lifetime that the plaintiff was his adopted son. On the contrary, whenever occasion arose, he denied that he had adopted the plaintiff.
(9) After the death of Venkatesh, her name has been entered by the revenue authorities in respect of the suit lands. The sale deed in her favour has been executed by Venkatesh for full consideration and plaintiff cannot challenge the same. She also contended that, in the event of the plaintiff being held to be the adopted son of Venkatesh, he would not be entitled to claim the entire suit properties, as she, being a widow in the joint family, was entitled to claim the interest of her husband which he had at the time of his death under the Hindu Women's Rights to Property Act 1937.
(10) Defendant 3 by her written statement, contended that the sale deed executed in her favour by Venkatesh was for consideration and that it is binding on the plaintiff who has no right to challenge its validity. She then adopted wholly the other contentions in the written statement of defendant 1.
(11) We do not think it necessary to set out the contentions of defendant 4 whose adoption has been held not proved, and we are not concerned with him in this appeal.
(12) On these pleadings, the trial court raised several issues and held inter alia that the plaintiff's suit is barred by law of limitation, that the plaintiff has failed to prove the factum and validity of his adoption and that the adoption deed and photograph were brought about by practising fraud upon the deceased Venkatesh. It also held that the sale deed in favour of defendant 1 was not supported by consideration and that the sale deed in favour of Mathurabai, defendant 3, was for consideration. But the trial court did not give the plaintiff any relief in respect of sale deeds, in view of its finding that the plaintiff had failed to prove his adoption and its validity in consequence of the fraud practised on Venkatesh. It, therefore, dismissed the plaintiff's suit, and it is against this decree that the present appeal has been preferred by the plaintiff.
(13) Mr. Shirgurkar, appearing for the appellant-plaintiff, submitted that the findings of the trial court on the various issues cannot be sustained by the evidence on record and, therefore, the decree dismissing the plaintiff's suit must be set aside. His principal contentions are: firstly, that the plaintiff has led sufficient evidence, both oral and documentary, to prove the factum of his adoption and the trial court was not justified in brushing aside this evidence and coming tot he conclusion that the plaintiff has failed to establish his adoption. Secondly, the defendants cannot be said to have established that the adoption of the plaintiff has been brought about by practising fraud on Venkatesh since there is no sufficient evidence to justify the same conclusion. He also contended that the finding of the learned Judge the suit is barred by the law of limitation is erroneous, since the plaintiff, who was a minor at the time of his adoption, has brought this suit within three years after he attained majority, and a year and quarter after the death of his adoptive father. He, therefore, contends that the decree of the trial court cannot be sustained and must be set aside.
(14) The important questions, therefore, that arise for our decision in this appeal are whether the evidence relating to the adoption given on behalf of the plaintiff proves the adoption and whether the alleged adoption has been brought about by practising fraud on Venkatesh.
(15) If the adoption is brought about by practising fraud on Venkatesh, then even if the factum of adoption is proved, it cannot be given effect to, for want of free consent on the part of Venkatesh to this adoption.
(16) We will, therefore, first consider whether the evidence led on behalf of the plaintiff in respect of the factum of adoption is acceptable. The plaintiff in order to establish his adoption, has examined five witnesses and produced some documentary evidence such as the adoption deed (Exhibit 191), copy of the photograph (Exhibit 192) with the two negatives, and the school leaving certificate (Exhibit 201)
(17) Before we proceed to consider the evidence on merit, we would like to state that the family of Venkatesh is a watandar family owning more than 240 acres of lands, houses and other properties. Though the plaintiff is alleged to have been adopted on 16th December 1941, the present suit has been instituted on 25th September 1958, i.e. 18 years after the adoption and a year and quarter after the death of Venkatesh.
(18) The law relating to the proof of adoption is that the person claiming to be an adopted son must prove the factum of his adoption by cogent and reliable evidence, and where the adopter denies the adoption, the onus is still heavier on the plaintiff to establish his adoption and its validity. This is what the Supreme Court states in Kishori Lal v. Mt. Chaltibai, : AIR1959SC504 .
'As an adoption results in changing the course of succession depriving wives and daughters of their rights and transferring properties to comparative strangers or more remote relations, it is necessary that the evidence to support should be such that it is free from all suspicions of fraud and so consistent and probable as to leave no occasion for doubting its truth.......'
(19) We will now proceed to examine the evidence led by the plaintiff in the light of the law stated above.
(20) It was contended by Mr. Shrigurkar that, while appreciating the oral evidence, the courts should not reject the oral evidence of the witnesses merely because of the existence of certain circumstances. He states that if the plaintiff's witnesses state on oath that plaintiff was given in adoption by the person competent to give, and was received by the person competent to take, and this giving and taking was accompanied by ceremonies such as homa, wherever it is necessary to be performed, then such evidence must be accepted to sustain the finding that the plaintiff has established his adoption, and the surrounding circumstances, existing either prior or subsequent to the adoption, should not be taken into consideration while assessing the truth or reliability of the evidence, since those circumstances would not alter the fact of adoption. once it is established and, therefore, he asked us to consider the oral evidence irrespective of the consideration of the other circumstances in the case.
We are unable to accept this contention of Mr. Shirgurkar. To ascertain the truth or the reliability of the testimony given by the witnesses, it must be tested by the surrounding circumstances to enable the court to judge whether, in the circumstances obtaining in the case, what the witnesses state can be accepted as true. if the established circumstances throw doubt on the veracity of the statements made by the witnesses, then their testimony cannot be accepted as true. It is open to the court while assessing the evidence of the witnesses to take into consideration the circumstances, either prior to the adoption or subsequent thereto, or the circumstances attending the adoption.
The Supreme Court in Ramchandra Rambux v. Champabai, : 6SCR814 observes that;
'In order to judge the credibility of the witnesses, the Court is not confined only to the way in which the witnesses he deposed or to the demeanour of witnesses, but it is open to it to look into the surrounding circumstances as well as the probabilities, so that it may be able to form a correct idea of the trustworthiness of the witnesses. The issue.... cannot be determined by considering the evidence adduced in the court separately from the surrounding circumstances which have also been brought out in the evidence, or which appear from the nature and contents of the document itself....'
It is in the light of this principle we proceed to assess the evidence led by the plaintiff to establish his adoption.
(21) It may be noted that the plaintiff, though a major, has not got himself examined in support of his adoption. However, he has examined hi natural father Narayan as P. W. 1. (After discussing the evidence the judgment proceeds:) In our view, the evidence of Narayan, as we will presently show, cannot be accepted as true. We, now, propose to examine the other evidence in support of the plaintiff's adoption first.
(22) We may state here that the evidence of the other four witnesses viz., P. W. 2 (the priest Narasimhachar), P. W. 4 (Guru Rao Garg, the photographer), P. W. 5 (Govindagowda, the attestor of the adoption deed) and P. W. 6 (Narayan Kulkarni, a clerk in the temple at Venkatapur) is almost in similar terms to what Narayan has deposed as to the factum of the adoption ceremony, and therefore, it is not necessary to state in detail what these witnesses have stated relating to the plaintiff's adoption ceremony.
(23) We shall first consider whether P. W. 6 Narayan Kulkarni can be said to be a witness of truth. As we have stated, he has given in detail as to how the adoption ceremony was completed. He has also stated that this is the only adoption, as far as his knowledge goes, during the last 25 years which has taken place at Venkatapur, where generally munji or marriage ceremonies are performed. The visitors to the temple invariably make offerings to the deity, but he is unable to state what amount was paid by Narayan or anybody else on his ceremony. he states that accounts and records of devasthan are being maintained by him but admits that he does not know what amount was paid on that occasion; there is no document he states, in the devasthan records to show that this adoption has taken place at Venkatapur. he has further admitted that he is not seen in the photo alleged to have been taken on the occasion of the adoption ceremony. He states in his evidence that one Sripada Bhat and Shankara Rao Hombal, the two panchas of the Devasthan, were present on the occasion, but none of them is also seen in the photograph. In our view, if the witness and the two panchas attended the adoption ceremony, then, naturally, they should appear in the photo. His testimony is not supported by any documentary evidence available in the devasthan records and, therefore, it appears to us that this witness is not a witness of truth and has come to court to support to the plaintiff's case falsely.
(24) The next witness to whose evidence we may refer is the photographer, P. W. 4. he has given in detail as to how the act of giving and taking, the performance of the homa and the writing of the adoption deed, and the taking of the photograph were also all done. But, in his cross-examination, he admits that he used to move about here and there till his time came to take the photograph, and that he was not present on the spot for the whole time to witness all the items of the functions. If it is so, it is obvious that what he has stated in detail relating to the adoption ceremony has not been witnessed by him, and yet he deposes in detail as to how the adoption ceremony was completed. In our view in such circumstances, his evidence relating to the adoption ceremony was completed. In our view in such circumstances, his evidence relating to the adoption ceremony cannot be accepted as true. (After discussing the evidence the judgment proceeds). However, we have to reject his evidence relating to the adoption ceremony, since, on his own admission he was not present at the spot for the whole time witnessing all the items of the function, and yet, he has given the details of the ceremony in words almost similar to that of Narayan, plaintiff's natural father. Therefore his evidence relating to the adoption ceremony cannot be accepted as true.
(25) Then the next witness is P. W. 5 Govindagowda. This witness also gives in detail as to how the adoption ceremony was started in the morning of the 16th and ended with the taking of the photograph. His narration of the details of the ceremony is similar to what Narayan P. W. 1 has stated. This witness has also attested the deed of adoption and claims to have identified Venkatesh before the Sub-Registrar. He has admitted in his cross-examination that he used to sit near the spot of the function, here and there during the performance of the function. This only means that he was not present at the adoption ceremony for the whole time and if so, he could not give the details of the adoption ceremony as he has done in his examination-in-chief, and when he was asked as to whether the giving and taking occurred prior to commencement of homa or after commencing it, he admitted that he does not recollect. He also admitted that he did not know Venkatesh prior to the occasion. (After discussing the evidence the judgment proceeds). No credence can, therefore, be given to these facts deposed to by this witness, and therefore, his evidence in support of the plaintiff's adoption cannot be accepted as true,
(26) Then we come to the evidence of the priest Narasimhachar. (After discussing the evidence the judgment proceeds.) But this part of his evidence is belied by the contents of the document itself, because the document does not contain any recital as to the age of the boy. Therefore this witness, it seems to us, has given evidence, as the other witnesses have done, without having regard to facts. As to the ceremonies, he says that he conducted them according to 'Regvedi Brahma Karma Bamuchaya' printed by Nirnaya Sagar Press, Bombay, and he admitted that he followed that book as stated, and perhaps, ought we know, it might be that he has given evidence as stated in the book itself, his evidence seems more artificial than real, and it would be risky to rely on his evidence to hold that plaintiff's adoption has been performed as stated by him.
(27) This is all the oral evidence, besides that of Narayan relating to the adoption ceremony alleged to have been gone through on the occasion of the plaintiff's adoption. One striking feature about the evidence of these five witnesses is that their evidence relating to the adoption is in similar terms. The adoption is stated to have taken place in the month of December 1941, and the evidence of these witnesses has been recorded in the month of December 1959, that is nearly 18 years after the alleged adoption has taken place, and yet we find the evidence given by all these witnesses is in similar terms. It is the experience of the court that if evidence has been given by witnesses after a long lapse of time, there will naturally be some discrepancies in their evidence and the court would not normally attach much importance to such discrepancies. But we find in this case a somewhat remarkable feature that all the five witnesses have deposed in similar terms, as to suggest that they either possessed a super natural memory or had memorised their evidence. In our view, the statement of these witnesses who seek to support the plaintiff's adoption are so similar to each other that we get the impression that their evidence is a prepared evidence for the purpose of the case. Otherwise, it is very difficult to explain in view of long lapse of time as to how the statements of the witnesses could be so similar to each other without there being contradiction, unless they possessed super natural memory, and that cannot be the case here. Their evidence is therefore unacceptable in proof of the plaintiff's adoption.
(28) Now, we will deal with the documentary evidence produced on behalf of the plaintiff. Ext. 201 is a school leaving certificate issued by the Beyond Smith High School, Belgaum. The admissibility of this document was objected to by the defendants. But it appears to us that there is no substance in their objection its admissibility, since it is issued under the rules prescribed by Chapter 1 of the Grant-in Aid Code.
This certificate shows two things:
(1) the date of birth of the plaintiff is stated to be 4th June 1939;
(2) the plaintiff has stated his father's name as Venkatrao. There is no evidence as to who have the name of Govind's father as Venkatarao. however, the fact remains that this document shows that the plaintiff's father's name as Venkatarao. That means, after the adoption, he has shown his father's name as Venkatesh, and not as Narayan. This is the only document which shows that the adoption was followed up by some overt act on behalf of the adopted son. In what year he changed the name is not borne out by the evidence on record. Except this, there is no other evidence on record to show that plaintiff's name was ever entered in any of the public records as the adopted son of Venkatesh.
(29) Then Ext. 191 is the adoption deed alleged to have been written by one Devappa, but he has not been examined since he is stated to be dead. In this connection, Mr. Shirgurkar for the appellant-plaintiff submitted that Venkatesh has admitted before the sub-registrar the execution of this document which contains the recital that plaintiff was taken in adoption by Venkatesh, and the proof of this admission shifts the burden on the defendants. In support of that proposition, he placed reliance on the decision in Chandra v. Chaudari Narapat Singh, (1906) 34 Ind App 27 (PC) where it is stated:
'that what a party himself admits to be true may reasonably be presumed to be so.'
Therefore, he states that a presumption enures in favour of the plaintiff was taken in adoption by Venkatesh and it is, therefore, for the defendants to show that plaintiff's adoption has not taken place as admitted by Venkatesh. It is true that if a party admits a particular thing, then it may be taken that he has so admitted because it is true, and, as observed in the case stated above, the onus would shift on the party making it.
But here, in the first instance, the admission by Venkatesh that he has adopted the plaintiff is in the document alleged to be fraudulent. Secondly, the admissions, if any, are not conclusive and are capable of being explained by the party making them. But here, the plaintiff, by his own conduct, has made it impossible to have any explanation from Venkatesh since he has filed the suit more than a year and a quarter after his death and 18 years after his alleged adoption, and even if it be held that such an admission would shift the burden on the defendants, still the question of burden becomes immaterial in the appellate court where the whole evidence has been led before the trial court. Moreover, no such contention was urged before the trial court.
(30) The decision in (1906) ILR 29 All 184: 34 Ind App 27, was referred to by the Supreme Court in : AIR1959SC504 , and it is stated that:
'An admission shifts the onus on the person admitting the fact on the principle that what a party himself admits to be true may reasonably be presumed to be so and until the presumption is rebutted the fact admitted must be taken to the established. This principle is stated in (1906) 34 Ind App 27 (PC). However, the question of onus loses its efficacy when it is never objected to in the lower courts and evidence having been led by the parties, at the appellate stage the court has to adjudicate on the material before it. Further, admission are not conclusive, and unless they constitute estoppel, the maker is at liberty to prove that they are mistaken or are untrue. Admissions are mere pieces of evidence and if the truth o the matter is known to both parties the principle stated in Chandra Kunwar's case (1906) 34 Ind App 27 (PC) above would be inapplicable: (1896) A. C. 587 Ref.' Therefore, in our view, the submission of Mr. Shigurkar, in the circumstances of this case, has no force and, therefore, this court has to decide the question on the materials placed before it.
(31) It was also pressed before us that the endorsement made by the Sub-Registrar would show that Venkatesh admitted the execution of the document before him. But, in our view, the certificate regarding the registration is admissible for the purpose of proving that the document has been duly registered in the manner provided by the Act and that the facts mentioned in the endorsement referred to in section 59 have occurred as therein mentioned. That is all. The mere fact that a deed of adoption has been registered cannot be taken as evidence of proof of adoption, as an adoption deed never proves an adoption. the ratio of the decision in Seth Biradh Mal v. Sethani Prabhabati Kumwar, AIR 1939 PC 152 has no application to the facts of this case. The factum of adoption has to be proved by oral evidence of giving and taking of the boy, and that the necessary ceremonies, where they are necessary to be performed, were carried out in accordance with Shastras.
(32) Even then, an adoption deed, which contains a recital as to the adoption having been made, would not give the plaintiff a status of an adopted son, if the adoption itself is disproved, or when it is shown that the adoption deed was not executed voluntarily, but was obtained by misrepresentation or fraud. In the instant case, plaintiff's adoption itself is not proved by the oral testimony of his witnesses, and as we presently point out, the adoption itself has been brought about by practising fraud on Venkatesh.
(33) In this connection, we would like to refer to two decisions which are relevant. The first is the decision in Tayammaul v. Seshachalla Naicker, (1865) 10 Moo Ind App 429. That was a case where the claim of the plaintiff to the property was founded on an alleged adoption. The plaintiff, in support of the adoption, relied upon an alleged will which recited that the plaintiff was adopted by the testator. He also alleged that the defendant was a consenting party to the adoption since she allowed the boy to perform the funeral rites as his adopted son, and after the adoption she put her thumb mark to an application to the Collector stating the adoption and the performance of the funeral rites by the adopted son and praying for the transfer into his name of her late husband's property. The fact of the adoption and execution of the will were both denied by the defendant.
It was proved in that case that the testator, who executed the will, which contained a recital that the plaintiff was adopted, was, on the day in question, quite incompetent to perform the adoption or any other act requiring the exercise of the powers of judgment and reflection and, therefore, the various acts alleged to have been performed by the plaintiff and the concurrence of the widow, and the various acts of acquiescence attributed to her, presumptions arising from such conduct could not establish a right which the facts themselves disproved. Thus, when it was found that the testator was not in a position to give his intelligent or free consent, then the various acts on which the plaintiff relied to sustain his adoption, could not establish that the plaintiff was an adopted son and create a right in him.
(34) In somewhat similar circumstances, the Supreme Court, to which a reference has been already made. viz., in : AIR1959SC504 , observed that:
'the performance of funeral rites will not sustain an adoption unless it clearly appears that the adoption itself was performed under circumstances as would render it perfectly valid. So also, the performance of the marriage of the son alleged to have been taken in adoption itself does not prove adoption, which is otherwise disproved. As a circumstance supporting the inference of an adoption set up by such a son, it is wholly neutral.'
The decision in (1865) 10 Moo Ind App 429, (PC) to which a reference has been made already, was also relied upon to state that:
'Where the facts are once ascertained, presumption arising from conduct cannot establish a right which the facts themselves disprove.'
Therefore the admission in the adoption deed, relied upon by the plaintiff in proof of his adoption, would not establish his adoption and give him the status of an adopted son of Venkatesh since the fact of his adoption is itself disproved.
(35) The next exhibit referred to is Ext. 192, a photograph alleged to have been taken on the occasion of the adoption ceremony. This is an uncounted photograph, and its four sides seem to have been cut. The negatives produced before the court are in broken condition. The photographer admits that there has been some dabbing done in the negatives. Therefore no importance could be given to such a photograph. Moreover, when the adoption itself is disproved, the evidentiary value of the photo or that of the adoption deed would be neutral, and therefore the documentary evidence produced by the plaintiff does not help him to establish that he was taken in adoption by Venkatesh.
(36) Now, we will proceed to consider whether the alleged adoption is said to have been brought about by practising fraud on Venkatesh. The case of the defendants as to fraud, as set out in the written statement of defendant has already been stated, namely, that under the pretext of performing the tonsure ceremony of the plaintiff, Venkatesh was take to Venkatapur, and under the pretext of performing the tonsure or jawal ceremony, the adoption ceremony is alleged to have been brought about.
(37) In the first place, we have to see whether it is proved that a jawal or tonsure ceremony was performed prior to the alleged adoption, and if it is proved, then to that extent, it might support plaintiff's case, but if it is disproved, then it might strengthen the defendants' case of fraud. Narayan, plaintiff's natural father, in his evidence has stated that plaintiff's jawal ceremony was performed at Dharwar when he was 11 months' old. According tot he religious custom, the jawal ceremony h as to be performed before the boy completes his first year. His family priest Ananthachar Hattiholi attended and it was performed by Krishnachar Hungund residing at Dharwar. he denied the suggestion in his cross-examination that the jawal ceremony of the plaintiff was really performed by him at Venkatapur and that he took Venkatesh to Venkatapur for that purpose only.
(38) In support of his evidence, he has examined P. W. 3 Krishnachar, who is said to have performed the jawal ceremony. He states that the jawal ceremony of Govind, the plaintiff, was performed by him at Dharwar when the body was 11 months' old. In his cross-examination, he admitted that one Ananthachar Hattiholi is the family priest of the plaintiff, but since he did not know the performance of the ceremony, he went on his behalf to conduct it. But that is not what Narayan says Narayan states that Ananthachar Hattiholi attended it but Krishnachar performed it. No reason has been given by him as to why this Krishnachar performed the ceremony because Ananthachar was unable to do it. Further, this witness states that jawala is performed at the house and need not be performed in any theertha and that Shraddha is performed at theertha. He says that jawal is not performed even in the temples. He admits that he performed only the jawal ceremony of Govind and not of any other children of Narayan.
(39) Now, what is this jawal or tonsure ceremony? Dr. P. V. Kane in his 'history of Dharmasastra', Vol. II, Part I, at page 261, describes the samskara of cholula i.e. 'jawal' to tonsure ceremony as follows;
'The principal act in this ceremony is the cutting of the hair of the child. The other subsidiary mattes are the performance of homa, feeding brahmanas, receiving of their benedictions and giving of dakshina; the disposal of cut hair in such a way that no one can find them. The ceremony is to be performed on an auspicious day....' There is no evidence on what day the ceremony was performed. The statement of this witness that the jawal ceremony is not performed in temples or theerthas, does not appear to be true and is not supported by any reliable authority. Though it may be performed at the house, it is more frequently performed in temples or religious places. This is all the evidence relating to the performance of the tonsure or jawal ceremony of the plaintiff, Narayan does not say that on the occasion, a homa was performed or Brahmins were fed and the boy received any benediction from them or any dakshina was given to them, as enjoined by Shastras and pointed out by Dr. Kane. In our view, therefore, the evidence relating to jawal ceremony led by the plaintiff is insufficient to hold that the jawal ceremony of the plaintiff was performed as stated by the witnesses prior to the alleged adoption.
(40) This conclusion receives support from the evidence of Mathurabai, defendant 3, the sister of Venkatesh.
(41) (After discussing the evidence the judgment proceeds). Accepting the evidence of Mathurabai, and rejecting the evidence of Narayan and his witness Krishnachar, we hold that it has not been established by the plaintiff that the jawal ceremony was performed prior to the date of his alleged adoption, and we further hold that, under the pretext of performing the jawal ceremony, an adoption ceremony was brought about at Venkatapur and the consent of Venkatesh was taken to the need of adoption.
(42) The photo produced in the case viz., Ex, 192 shows that homa was performed, and as Dr. Kane points out, the performance of homa is also a subsidiary matter which is performed at the time of the tonsure ceremony. There is also the evidence that a dinner was held and people were fed, after the photo was taken, which is also done on the occasion of the 'jawal' ceremony. Therefore, for what we know, the photograph may as well be the photograph of the jawal ceremony.
(43) It is to be noted that the conduct of the adopted and that of the adoptee is of great relevance in proof of an alleged adoption. If, as stated in the adoption deed, Venkatesh loved the plaintiff and therefore took him in adoption, then it would be relevant to see how the adoptee was treated by the adopter before and since the adoption. We would therefore consider the evidence bearing on the conduct of Venkatesh towards the plaintiff, and the conduct of plaintiff or of Narayan during plaintiff's minority, during the period of 18 years, and see whether plaintiff could be said to have been adopted by Venkatesh.
(44) It is to be remembered that the family of Venkatesh was a Watandar family, owning considerable property, and if he wanted to make an adoption, surely the adoption could not have been performed in the way in which it is alleged to have been performed. It would be reasonable to state that normally before an adoption is made to such a rich and watandar family like Venkatesh's, talks of adoption would precede the act of adoption. In this case there is no evidence that before Venkatesh went to Dharwar, it was settled that Venkatesh should take the plaintiff in adoption and that he went only for that purpose to Dharwar. In fact, Narayan, in his evidence, does not state so. On the contrary, he states in his cross-examination that when Venkatesh his mother and Mathurabai came to dharwar 8 or 10 days prior to the adoption, it was settled that Venkatesh should take the boy in adoption. But a suggestion has been made to Mathurabai in her cross-examination that Venkatesh called Ranga Rao i.e., plaintiff's grandfather, and asked him to give his grandson Govind in adoption to him and thereafter they went to Dharwar. This suggestion would imply that the talk relating to the adoption took place at the instance of Venkatesh and that too, at his place at Belgaum. But this is falsified by the evidence given by Narayan himself (plaintiff's natural father) that 8 or 10 days prior to the ceremony, the adoption was settled at Dharwar. Thus it is clear that there is no evidence to prove that prior to the adoption, Venkatesh decided to take the plaintiff in adoption and as it is observed in the decision referred to already, viz., (1865) 10 Moo Ind App 429 (PC) at p. 434. that:
'How is it possible that a person in such a condition could be capable of any act requiring judgment and reflection, especially one to which no antecedent circumstances appear to have led.....'
Therefore, the question is, how is it that Venkatesh, when he went to Dharwar after the death of his brother; all of a sudden, decided to take the plaintiff in adoption without there being any prior agreement or talk about the adoption? Moreover the relatives of Venkatesh or of Narayan, who should have normally been invited to attend such ceremony are not invited. No publicity is given to the adoption. On the contrary, it was sought to be brought about in secrecy. All these matters in our view, seriously reflect on the credibility as to whether, at Venkatapur, the ceremony that took place was that of an adoption, and whether it was not a jawal or tonsure ceremony, as alleged by the defendants, that was performed.
(45) Another circumstance, which is of some importance is that, after the alleged adoption, Venkatesh at no time admitted that he adopted the plaintiff. On the contrary, whenever there was an occasion, he has stated that he had no male issues. In this connection, we may refer to two exhibits produced on behalf of the defendants. They are exhibits 242 and 243.
(46) Exhibit 242 is a copy of the application made by Venkatesh to the Assistant Collector, Southern Division, Belgaum District, Belgaum, in response to a notice issued by him under Section 40, 42 and 43 of the Bombay Act III of 1874, under which Venkatesh being a palidar had to render service to the government by turns, but he being almost blind, has stated that he was unable to render service and therefore he head nominated one Ramachandra Rango Jamnies to perform service on his behalf. There is no reference in it that he had any male member in his family to render service.
(47) Ext. 243 is of the year 1951. It is also an application given to the Prant Officer, Southern Division, District Belgaum, in response to the notice issued to him calling upon him to appoint a proper person as a deputy for him. Therein he has stated that since there is no male issue in his family and that he has grown old and is blind, the government may appoint in his turn any person it liked. The point of importance is that there is a statement that he had no male issue in his family.
(48) In this connection, we may also refer to two wardies exhibits 204 and 209. Exhibit 204 is an application made by Mathurabai (defendant 3) to the village officers. Holihosur where the family properties are situate, and some of which were alienated to her by Venkatesh. But that application, she sought the entry of her name as a kabiedar in respect of the lands shown in the application and the deletion of the name of Venkatesh as Kabjedar. it is also stated that the said Venkatesh has agreed to it. The contents show that it was decided after recording evidence on 21st June 1943 before the Amildar Sampgao at the time of enquiry in respect of the Pali Register that Venkatesh has not taken the said Govind in adoption and that the said person has no interest of any kind and that no property is in his possession Ext. 209 is an application by defendant 1 containing similar statements. Thus it could be seen that there is a denial of the adoption of Govind by Venkatesh as early as in the year 1943.
(49) Then it is of importance to note that under Section 34 of the Bombay Hereditary Offices Act, 1874 (Bombay Act III of 1874) it is obligatory on the registered representative of the watandar that in case any adoption is made by him as an heir, a report of such adoption shall be made within three months to the Collector by such watandar or in case of his death, by such adopted heir or by the guardian of the latter, and the Collector shall register the name of such heir accordingly.
(50) Section 35 provides that in any case in which no notice as contemplated by section 34 of report of such adoption has been made to the Collector, the Collector shall not recognise the same without the production of a certificate of heirship, or of a final decree of a competent Court establishing the validity of such adoption. That being the statutory provision of law, Venkatesh being a watandar Kulkarni should have intimated to the Collector that he has adopted the plaintiff as his son and made him his heir, if really he had adopted the plaintiff. But no such knot as required by section 34 of the Act is given.
(51) Further, Ext. 245 suggests that Narayan's family was suspected to have a hand in the dacoity committed in the house of Venkatesh at Holihosur prior to the adoption. If so, Venkatesh would not think of adopting the plaintiff from such a family.
(52) It is also importance to note that plaintiff's thread ceremony, as admitted by Narayan, was performed by him, and not by Venkatesh. If really Venkatesh had adopted the plaintiff, then it was he who should have performed his thread ceremony, and not his natural father since the gothras of Narayan and Venkatesh are different, and the plaintiff by virtue of his adoption loses the gothra of the natural family and acquires that of the adoptive family and, therefore, it was Venkatesh who should have, in the normal course of things, performed the thread ceremony, if he had really adopted the plaintiff. But that is not done.
(53) it is also in evidence that at no time from 1941 till 1957 when Venkatesh died, the plaintiff ever lived with him. It is in the evidence of Narayan that the plaintiff did not perform the funeral obsequies of Venkatesh. Defendant 1 in her evidence stated that it was she who performed the obsequies of the deceased Venkatesh. If plaintiff had really been adopted by Venkatesh, it was he who should have performed the obsequies of the deceased Venkatesh.
(54) Here we may refer to the decision of the privy Council in Diwakar Rao v. Chandanlal Rao. AIR 1916 PC 81 where the facts are more or less similar to the facts of the present case. One Indraraj Bhau and Mahipat Rao Bhau were the Zamindars and very closely related to each other. The plaintiff, minor by next friend Indraraj Bhau, who instituted a suit to have declared his adoption valid, was born on 26th October 1898. Mahipat Rao Bhau with his two wives went, on being invited by Indraraj Bhau, to be present at the barsa (a ceremony performed 12 days after the birth of an infant). Mahipat Rao Bhau and his wives stayed there for a few days after the barsa ceremony, and the alleged adoption is said to have taken place on 10th November 1898. Sometime thereafter they returned to their home. Soon thereafter, when he (Mahipet Rau) was asked whether he had adopted the plaintiff there, be denied that he had adopted the plaintiff.
Various attempts were thereafter made to persuade him to admit the plaintiff's adoption but he did not admit the adoption. Mahipat Rao Bhau died on 7th May 1907, leaving a will and codicil, wherein it was stated he had adopted Chandan lal. It was therefore on the 25th July 1907 the plaintiff filed a suit through his next friend, his father. The respondents the two widows of Mahipat Rao Bhau denied that their husband had at any time adopted the plaintiff. However, the plaintiff relied upon a letter written by one Mr. Kelkar pleader, who was representing the widows in the suit, that Mahipat Rao had admitted therein that the plaintiff was his adopted son. Kelkar was examined as a witness for the plaintiff, and his evidence was that he had a talk about adoption with Mahipat Rao subsequent to the letter, and that Mahipat Rao then emphatically denied the adoption and that to his recollection Mahipat Rao never at any other time made any admission as to the adoption, and that this impression was that Mahipat Rao was denying the adoption. Their Lordships, therefore, did not attach any importance to the letter produced under such circumstances.
(55) Their Lordship stated that Mahipat Rao had, from the outset, consistently denied that he had adopted the plaintiff. They, therefore, observed that 'it is a matter for grave suspicion that, thought it was open to Indraraj to commence a suit claiming to have the adoption of the appellant declared valid, no such suit was commenced until two and a half months after Mahipat Rao's death.' They also referred to the conduct of Mahipat Rao pointing out that the child's name was not changed, that the plaintiff was never taken to live with his new family or recognised by them in any way. It was further stated that it was the interest of Indraraj that the plaintiff should be adopted as a son of Mahipat Rao and the heir to the Hatta Zamindari, and if the adoption took place that it should take place under conditions which would not lead to subsequent doubt and dispute. They added that 'it appears not only that no such precautions were taken, but that there is no explanation of the continued residence of the appellant at the home of his natural father or of the removal of the first hair of the boy in the temple of Pinglai at Bhandara, or of the arrangements for his marriage which Mahipat Rao declined to attend, It was also observed that though Mahipat Rao denied the adoption of the plaintiff, and there was no doubt that at that time Mahipat Rao's attitude had raised a serious question in the mind of Indraraj he took no steps to establish the fact of adoption. Thus their Lordships pointed out that all the surrounding circumstances and conditions point in the opposite direction and make it highly improbable that Mahipat Rao did adopt the plaintiff at the alleged date.
(56) Their Lordships therefore held that the plaintiff must be held to have failed to establish his adoption. With respect, we should say that the reasons given by their Lordships for their decision, negativing the plaintiff's claim as an adopted son, would also with equal justification hold good in the instant case.
(57) It should be observed that one of the results of adoption is to change the natural course of succession in the adoptive family, since the adopted boy is transferred from the natural family, to the adoptive family; and it was, therefore, stated as long back as in (1834) 2 Knapp P. C. 287 that-
'in no case should the rights of wives and daughters be transferred to strangers, or more remote relatives, unless the proof of adoption, by which that transfer is effected, be proved by evidence free from all suspicion of fraud, and so consistent and probable and to give no occasion for doubt of its truth.'
(58) The conduct of Venkatesh, after the alleged adoption in the instant case, is inconsistent with the adoption, if any, made by him. On the other hand, plaintiff's or Narayan's conduct, except as seen from ext. 210 that the name of Venkatesh was shown as that of his father, in not asserting the plaintiff's adoption during the period of 18 years, is a matter for grave suspicion. Narayan, in his evidence, admits that he has not produced the deed of adoption at any time prior to the suit, and that there is no document to show that Venkatesh ever admitted the plaintiff's adoption.
It is also important to note that the name of the plaintiff was not entered in the revenue records as an adopted son at any time. Venkatesh disputed plaintiff's adoption; yet, no steps were taken by Narayan to get the plaintiff's adoption established. Further, it is a matter of grave suspicion that though it was open for Narayan to commence a suit claiming to have the adoption of the plaintiff declared valid, no such suit was commenced until after the death of Venkatesh. All these circumstances, therefore, clearly suggest that the plaintiff's adoption is a matter of grave doubt tending to show that the adoption must not have taken place. Therefore, Narayan's evidence, for the reasons stated, is unacceptable to us as true and reliable. We have already shown how the other evidence, both oral and documentary, led by the plaintiff, for the reasons stated, is unacceptable. Therefore, we hold that the plaintiff has failed establish that he was adopted by Venkatesh as alleged by him; and such an adoption, if any, has been brought about by practising fraud on Venkatesh. In that event, the plaintiff must fail and his suit is liable to be dismissed.
(59) In view of our conclusion just stated above, it is not necessary for us to consider the other question relating to the validity of the sale deeds in favour of defendants 1 and 3 or other questions raised on behalf of the plaintiff. The learned counsel for respondents did not seriously try to sustain the finding on the question of limitation and, therefore, it is unnecessary for us to go into it.
(60) Before we conclude, it is to be noted that at the fag-end of the argument, an application has been made on behalf of the appellant-plaintiff under O. XLI. R. 27 of the Code of Civil Procedure seeking to produce additional evidence. During the course of arguments, it was put to the learned counsel for the appellant whether there is any evidence, apart from Ext. 201, to show that plaintiff has ever asserted his adoption and it was, in such circumstances, at the fag-end of the hearing an application has been made seeking to produce certain documents to show that plaintiff has adopted 'Venkatesh' as his father's name. In our view, the application is not bona fide. Moreover, the fact that he wants to establish by the production of these documents is that he has adopted 'Venkatesh' as his father's name. But that fact is apparent from Ext. 201, which is already on record. Therefore, we do not see any justification to entertain this application consequently, we reject it.
(61) For the reasons stated above, we confirm the decree made by the trial court and dismiss this appeal. We in the circumstances direct each party to bear and pay its costs of this appeal.
(62) Appeal dismissed.