1. This appeal is by the plaintiff against the decree, dated 10-5-1958 by Shri N.R. Ithape, Additional District Judge, Indore in Civil Suit No. 20 of 1953, dismissing the appellant's claim for possession of property left by her deceased father, Harilal, who died on 6-2-1951.
2. The appellant claimed possession of the property in her capacity as the natural heir of the deceased Harilal, she being his daughter. On the other hand, the first respondent, Ganeshlal claimed? to be the adopted son of Harilal. The second and the third respondents, namely, Mst. Mirabai and Ramrao were added as defendants, as they were found to be in possession of some items of the property. The second and the third respondents did not raise any defence and, therefore, the contest was mainly centred round the question of adoption of the first respondent.
3. The trial Judge framed only two issues, one whether the first- defendant had proved his adoption; and secondly -- whether the plaintiff bn account of her unchaste character was disentitled to inherit her father's property. The learned-Judge upheld the first defendant's plea of adoption and negatived his contentions on the other point. In the present appeal, the learned counsel for the first respondent did not challenge the adverse finding. Hence the only question for consideration in this appeal is whether the first respondent was duly adopted as a son by the deceased. Harilal If the adoption is upheld, the right of the appel-lant as a natural heir would automatically be displaced.
4. The burden to prove adoption was undoubtedly on the first respondent. It was rightly placed on the first respondent by the trial Judge. The question, however, is whether the factum of adoption has been established by the first respondent.
5. Before considering the oral, and the documentary evidence on record, it would be convenient to consider the pleadings of the parties on the question of adoption. In his written statemen the first respondent merely alleged that he had been adopted by the deceased Harilal in the presence of caste Panchas according to the custom; and this made him an heir of all his property. No proper paticulars were pleaded in the written statement besides the bald assertion of the fact of adoption without reference to the time when the ceremonies took place. This aspect will have a bearing on the question of authenticity of the two documents (Ex. D.1 and Ex. D.2) both dated, 14-2-1947. We propose to consider them later on.
6. On behalf of the appellant, four letters written by the deceased, Harilal were filed to show that the adoption could never have taken place in fact. The first of these letters, dated, 28-8-1946 (Ext. P.1) was addressed to Mohanlal (son-in-law of the appellant, Chhotibai). In this letter, Harilal's mental condition is disclosed. He wrote that he was getting old and that he had nobody to look after him. The second letter (Ex. P.2) was written by Harilal on 30-8-1946 and addressed to Mohanlal. The contents of the letter disclosed that Harilal had not known the whereabouts of his daughter, as also her well-being for the last several years. He was, therefore, keen on knowing about her well-being and her attitude towards him. The third letter, dated, 22-9-1946 (Ex. P.3) was addressed by Harilal to Mohanlal and it disclosed the same trend of mind. These three letters, were, indisputably, written before the alleged adoption, dated, 14-2-1947. However, the fourth letter, dated, 31-8-1948 (Ex. P.4) was indisputably after the alleged adoption, dated, 14-2-1947. The said letter also disclosed the same state of mind of Harilal indicating that he was all alone, though comfortable with the assistance of his servants. He had definitely stated that he has no near relations. He was keen on knowing about the whereabouts of his daughter. He had also expressed a wish that his daughter should stay with him and should look after him in his old age. This letter (Ex. P.4) written after the alleged adoption, dated, 14-2-1947 would be a strong piece of circumstantial evidence against the factum of adoption. However, it has to be considered along with the other evidence on record.
7. Coming to the documentary evidence filed on behalf of the first respondent, we find a memorandum, dated, 14-2-1947 (Ex. D. 1) said to have been made by Dr. Sunderlal (D. W. 3) at the time of the alleged adoption, when certain persons mentioned in the memorandum were said to have made presents to the adopted boy. The said memorandum has been signed by Dr. Sunderlal (D. W. 3). The original is not on record. Only a true copy of the original has been filed.
8. The other document (Ex. D.2) is said to be a letter, dated, 14-2-1947 written by the deceased Harilal and addressed to Karunashankar, the natural father of the respondent. In the said letter, the deceased Harilal was said to have acknowledged the fact of adoption. The letter appears to have been counter-signed by one Narayan Bhatt (D. W. 5), who was said to have officiated at the ceremonies of adoption. This documentary evidence has to be considered along with the oral evidence on record.
9. Of the persons said to have been present at the time of adoption as per the memorandum (Ex. D.i), the first respondent examined Ramchandra (D. W. 2), the brother-in-law of Harilal. Dr. Sunderlal was the scribe of the said document. On the other hand, the appellant examined Pandit Navnitlal (P. W. i) as her witness. The other persons mentioned in the document, namely, Joshi Jagannathji Badrinathji, Shri Govindlalji Shridharji, Rana Vijaykrishna Kossal Krshnaji of Dhar, Rana Radhakrishna Hari Bhattji of Khargone and Acharya Harilalji Dinanathji of Badnagar were not at all examined as witnesses. This would only indicate that these persons, who might be considered to be independent witnesses, were not examined by the first respondent. This may lead to an inference that the first respondent examined only two interested witnesses out of the persons mentioned in the said document and avoided to examine other persons, who might be Independent witnesses not subject to the influence of the first respondent.
10-13. (His Lordship considered the oral evidence led on behalf of the first respondent ami. continued:)
14. The first respondent was examined as D. W. 4. From the testimony of the said witness, it is clear that he was a man of an humble status, who was doing the work of a peon. This witness generally tried to support his case. As regards the question of taking out Mahurat, the witness stated that it was so taken out when his natural father, Karunashankar and Sunderlal were present. The witness in his cross-examination admitted that he was in possession of the account books and the diaries maintained by Harilal. But, strangely enough, he had failed to produce any of those account books or diaries, which might disclose expenses incurred on the adoption ceremonies of on subsequent occasions.
15. The fifth witness for the first respondemt. namely, Narayan Bhatt (D. W. 5) stated that he had officiated at the adoption ceremonies and he had attested the document (Ex. D.2), which-had been scribed by Dr. Sunderlal and signed by the deceased Harilal. According to this witness, documents were scribed after the adoption ceremonies were over. As regards the particulars, it may be generally stated that the version, as given by this witness is different from the one given by Karunashankar (D. W. 1), Ramchandra (D. W. 2) and Dr. Sunderlal (D.W. 3). Generally it can be stated that the said witnesses have given different versions which are at variance with each other and the discrepancy cannot be said to be minor in any sense. The witnesses have differed on thequestion as to at what place and when the Mahurat was taken out, as also about the details of the ceremonies of adoption and the time when theytook place. They also gave differing versions regarding the execution of the two documents
(Ex. D.1 and Ex. D.2). This was all the evidence led on behalf of the first respondent on the pointof the factum of adoption.
16. This evidence, in our opinion, apart frombeing discrepant, is not re-assuring to the extentthat the factum of adoption can be held to havebeen proved on the strength of this evidence. At this stage we may observe that the two documents (Ex. D.1 and Ex. D.2) do not appear to be above suspicion. The document (Ex. D.1)has been scribed by Dr. Sunderlal (D. W. 3), whohas been taking a lot of interest in the so-called adoption of the first respondent. The documentis not signed by any of the persons said to havebeen present; and other persons, who might be considered to be independent witnesses, have not at all been examined by the first respondent. It isto be noted that particular care has been taken to examine only such witnesses, as are highly interested in the first respondent. As regards the otherdocument (Ex. D. 2), the same has been completely scribed by Dr. Sunderlal (D. W. 3). It is said to bear the signature of Harilal. Strangely enough, the original document is not on record. The document is said to have been attested by Narayan Bhatt (D, W. 5), another witness highly interested in the first resppndent. Had the original been onrecord, it might have helped this Court to compare the same with the other undisputed signatures of Harilal. But by taking back the originals and bymerely filing copies, the first respondent has denied this opportunity to the appellate Court of judging the genuineness of these two documents upon apersonal impression. However, upon the material on record, which is discrepant and not very reassuring, it is difficult to understand as to why thetrial Judge did not insist on the original documents (Ex. D. 1 and Ex. D. 2) being kept on record. Such a practice ought not to be encouraged. Such important documents should not be returned at least till the decision, of the appeal. We disapprove ofthis action of the trial Judge in allowing the original documents to be returned in undue haste. Even during arguments in this Court, we called upon the learned counsel for the first respondent if he could produce the originals before us. However, the same have not been produced even tillthe date of the Judgment.
17. The evidence led on behalf of the appellant consisting of five witnesses is more or less of a negative nature. There is no particular significance to be attached to the same except that the witnesses have tried to depose about the mental condition of the deceased Harilal. The same is clear from the letters written by Harilal (Ex. P. 1 to Ex. P. 4). The last document namely, Ex. P. 4 makes the probability of adoption very slender. Moreover, thedocuments (Ex. D. 1 and Ex. D. 2) do not appearto be above suspicion, as they could have beenmanipulated any time afterwards, , particularly inview of the fact that the other persons, who mightbe independent witnesses as. mentioned in Ex. D. 1have not at all been examined by the first respon-dent. Therefore, upon the material on record, as it stands, we are of opinion that the learned Judge of the trial Court did not examine the evidence with due care and attention that this case deserved. The learned Judge was purported to believe the evidence of the first respondent of the factum of adoption without reference to the doubtful or suspicious circumstances.
18. Where a, party alleges adoption displacing the right of the natural heirs, the same has to be proved very strictly so as to indicate not only the factum, but also the validity of adoption. It is true that in Dal Bahadur Singh v. Bijal Bhadur Singh, 57 Ind App 14 : (AIR 1930 PC 79) the question was about the authority of the widow to adopt a son to her husband, as the adoption was being made after a lapse of time pursuant to the alleged authority given by the husband, Their Lordships laid down that the authority must strictly be proved and where time had elapsed, the evidence regarding the same should be closely scrutinised. The same principle, in our opinion, will be applicable to a case where it is alleged that the decision to adopt had been taken a long back and the actual adoption was being performed after a considerable lapse of time. Such is the instant case where the decision to adopt was said to have been made in the year 1925 A. D. and the actual adoption was said to have taken place on 14-2-1947, that is, after a lapse of about 22 years. Moreover, the adoptive father was himself a lawyer who could understand the legal implication of his own action. For this reason also, the evidence in the present case has to be very closely scrutinised.
19. In Padmalav Achariva v. Fakira Debya, AIR 1931 PC 84, their Lordships of the Privy Council laid down that where a widow, who was a natural heir to her husband was sought to be deprived of her rights on the basis of an alleged adoption, strict proof of the adoption was necessary and the evidence ought to be free from suspicion. Their Lordships also laid down that non-production of the account books in possession of a person propounding adoption, which might displace all suspicion would lead to the drawing of an adverse inference against him. Their Lordships further laid down that where an adoption was being propounded, which on the face of it might appear improbable, particularly in view of the fact that no contemporaneous evidence was available, the suspicion not being removed, the adoption could not be said to have been proved. It is, therefore, clear that Their Lordships have laid down that an adoption has to be proved with reference to the contemporaneous facts and circumstances and all suspicion about the alleged adoption ought to be removed before it can be held that the adoption is established.
In our opinion, applying these tests to the present case, it is clear that the first respondent & relying on two suspicious documents and has taken care to examine only interested witnesses said to have been present at the ceremonies and avoided to examine other persons, who might be considered to be independent witnesses. Even the other circumstances as are disclosed by the letters written by the deceased, Harilal (Ex. P. 1 to Ex. P. 4) made the adoption improbable. The entire story ofadoption as propounded by the first respondent appears wholly improbable upon the material and the circumstances brought out on record, making it very suspicious. According to the first respondent, the adoption appears to have taken place insecrecy. That would be the implication of theevidence led on his behalf. A very heavy onus would lie on the person propounding the adoption to displace all suspicion which alone would lend a reassuring colour to the evidence led on his behalf. We may only observe that the first respondent has clearly failed to establish the same.
20. The onus is undoubtedly heavy on a person who propounds an adoption. In the lightof the tests laid down in their Lordships of the Privy Council, we are unable to hold that the first respondent, discharged the heavy burden that Jay on him, particularly in view of the discrepant evidence and the suspicious documents which make the adoption, all the more improbable on account of the mental condition of Harilal, as disclosed bythe letters (Ex. P. 1 to Ex. P. 4).
21. Moreover, the deceased Harilal was said to be maintaining account books and diaries, which have not seen the light of the day, but which are, even on the admission of the first respondent, in his possession. Any entries in those account books and diaries relating to the expenses of adoption would have been useful to give a re-assuring colour to the evidence led on behalf of the first respondent and for failure to produce such account books anddiaries, an adverse, inference is liable to be drawnagainst the party propounding the adoption, as laid down by Their Lordships of the Privy Council in Kishorilal v. Chunnilal, 36 Ind App 9 (PC) which has, later on, been reiterated by Their Lordships of the Privy Council in Lal Kunwar v. Chiranji Lal, 37 Ind App 1 (PC). Under these circumstances, we are of opinion that the suppression of the account books and the diaries maintained by the deceased, Harilal ought to have led to an adverse inference being drawn against the first respondent, particularly in view of the fact that thetwo documents filed by him are not above suspicion and the oral evidence led on his behalf is discrepant.
22. To conclude, we are of opinion that the conclusion of the learned Judge of trial Court based upon a wholly wrong approach cannot be sustained in law. The adoption of the first respondent could not have been held proved under the circumstances detailed by us above. The appellant as a natural heir was entitled to a decree for, possession in her favour of all the property left bythe deceased Harilal. Consequently, this appeal succeeds and is allowed with costs of both thecourts, with the result that the appellant's suit forpossession, as against all the respondents in respect of the different items of property stands decreed. Counsel's fee in this Court according to schedule or certificate, whichever be less. The amount of court-fees payable on the memorandum of appeal and the plaint by the appellant shall be recovered from the first respondent, who is in possession of most of the property of the deceased, Harilal.
23. I agree.