1. Annapurna (plaintiff) is the widow of Nilmoni Sahu who died on 22-7-1960. Narendra (defdt. No. 1) a minor is the natural-born son of Lokenath (defendant no. 5) and Ratnamala (defendant no. 6). Labanga (defendant no. 3) is the sister's daughter of the plaintiff and lived with her from early childnood. Anjali (defendant no. 4), a minor is the daughter of defendant no. 3. Defendant no. 2 is the deity Shri Shri Shri Radha Nilamadhaba Mahaprabhu installed by Nilmoni.
2. Plaintiffs case is that the 5th defendant is a distant agnatic nephew of Nilmoni and was very intimate with him. After Nilmoni's death he looked after her affairs and wanted execution of a power-of-attorney. She is illiterate. Having no independent advice, she executed a power-of-attorney in favour of the 5th defendant on 11-8-60. From whispers in the locality, she learnt that she had parted with all her properties and had adopted the 1st defendant as her son. She procured certified copies (Exs. B, C and D) executed by her as power-of-attorney. When the certified copies were read over and explained to her, she found that those documents did not constitute the alleged power-of attorney. Ex. B purported to be a deed of adoption and gift in favour of the 1st defendant. Ex. C was a deed of gift in favour of the 2nd defendant, and Ex. D was in favour of the 3rd and 4th defendants. The suit was filed for a declaration that the 1st defendant was not the adopted son of her husband or herself and Ex. B is not binding as a deed of gift. She also asked for a, declaration that Exs. C and F were invalid and not binding on her.
The 2nd defendant did not file any written statement. The 3rd and 4th defendants filed a written statement fully supporting the plaintiffs case. The suit., proceeded ex parte against them. Only the 1st, 5th and 6th defendants contested the suit by filing a joint written statement. They accepted the position that the 5th defendant was intimate with Nilmoni during his life time and that after his death he looked after the affairs of the plaintiff. Their case, however, is that Nilmoni during his life time expressed a desire to adopt the 1st defendant, who is the second son of the 5th defendant. For some reason or other, the actual adoption had not taken place when Nilmoni died at an age of about 70 years. Plaintiff was the second wife of Nilmoni and by the time of his death was about 60 years old. She felt helpless and wanted to fulfil the wishes of her husband by adopting the 1st defendant. She was not pulling on well with her nearer agnates. After the Sudhi ceremony was over, the adopted the 1st defendant on 8-8-60 and there was giving and taking ceremony. In recognition of the factum of adoption, she executed the original of Ex. B on 11-8-60 whereby she accepted the 1st defendant as her adopted son and transferred certain properties to him by way of gift. The contesting defendants accept the plaintiff's case that the 3rd defendant was living with Nilmoni and the plaintiff from her early childhood and that they had given her in marriage. As she was the foster daughter, plaintiff wanted a house to be gifted to her. Accordingly, she transferred one of the houses consisting of two sadalas of thatched houses by a registered deed of gift the certified copy of which is Ex. D. The 2nd defendant had been installed by Nilmoni. Plaintiff wanted that certain properties should be set apart for the management and seba-puja of the deity and she accordingly executed the original of Ex. C on 11-8-60.
2. The learned trial Court recorded the following findings:--
(a) Plaintiff is illiterate and aged, but she is otherwise worldly-wise. She had no independent advice in the matter of execution of the originals of Exs. B to p. Defendant No. 5 was not however in a position to dominate her will.
(b) Ex. B is not unconscionable. It was a sort of compromise and was not prejudicial to the interest of the plaintiff. She executed the three documents to honour the wishes of her husband.
(c) The originals of Exs. B to D are genuine.
(d) Defendant No. 1 was validly adopted by the plaintiff. Mr. R.N. Misra challenges most of these findings.
3. If the original of Ex. B was genuine and was executed by the plaintiff after it was fully explained to her, then under Section 16 of the Hindu Adoptions and Maintenance Act (Central Act 78 of 1956) (hereinafter to be referred to as the Act), a presumption in favour of adoption would accrue. The section lays down that whenever any document registered under any law for the time being in force is produced before any Court purporting to record an adoption made, and is signed by the person giving and the person taking the child in adoption, the Court shall presume that the adoption has been made in compliance with the provisions of this Act unless and until it is disproved.
The original of Ex. B purports to record the adoption of the 1st defendant. The original was signed by the 5th defendant who gave the 1st defendant in adoption and by the plaintiff who took him in adoption. If the original of Ex. B is genuine and was executed by the plaintiff, then it shall be presumed that the 1st defendant had been adopted in compliance with the provisions of this Act unless and until it is disproved by the plaintiff.
It is therefore, necessary to examine if the original of Ex. B was executed by the plaintiff and was genuine. Before this question is answered, it would be appropriate to examine as to in whose custody the original of Ex. B was and whether secondary evidence thereof is admissible. Plaintiff filed the certified cbpies of Exs. B to D along with the plaint. The scribe (D. W. 2) admitted that he took return of the originals of Exs. B to D from the Sub Registrar's office and handed them over to defendant No. 5. He, however, added that some days after the registration of originals of Exs. B to D, plaintiff again got those documents read over by him. Defendant no. 5 (D, W. 7) deposed-
'Plaintiff told that the originals' of Exs. B to D should be given to me. D. W. 2 instead gave those documents to plaintiff, though I signed in the book of D. W. 2, as I and plaintiff were sitting in the plaintiff's house while D. W. 2 returned the originals of Exs. B to D, Originals of Exs. B to D are not with me.'
Plaintiff (P.W. 9) stated that originals of these documents were not delivered to her by D. W. 2 or D. W. 7 and were not subsequently read over to her by D. W. 2. There is no other evidence on this aspect of the matter. On the aforesaid evidence, conclusion is irresistible that the originals of Exs. B to D were taken return of by D. W. 2 and were handed over to defendant no. 5. The custody of the documents is with defendant No. 5 who failed to produce them.
Under section 64 of the Evidence Act, documents must be proved by primary evidence subject to various exceptions enumerated in Section 65. None of the exceptions applies to this case. If objection had been taken in the trial court, the secondary evidence of the original could not have been permitted and Exs. B to D could not have been marked as exhibits.
The fact however remains that Exs. B to D have been marked as exhibits without objection being taken by the plaintiff. Even in the memorandum of appeal, no point has been taken that secondary evidence was inadmissible. Exs. B to D are not per se inadmissible. The objection relates only to the mode of proof. Law is well settled that if the objection is confined only to the mode of proof, it must be taken at the earliest point of time when the documents are tendered in evidence in the trial court. The objection is not permissible to be raised at a subsequent stage or in appeal. A similar contention was raised when a copy of a registered will was admitted in evidence without sufficient foundation being laid for its admission. The contention was overruled in AIR 1915 PC 111, Padman v. Hanwanta as the objection had not been taken at the appropriate stage. Exs. B to D cannot be excluded from consideration on the ground that no foundation was laid for admission of secondary evidence as the objection was not taken at the time when the documents were exhibited.
It is next necessary to examine if these documents were genuine and were executed by the plaintiff after the documents were explained to her and she understood the import thereof. Admittedly, she is illiterate and had no independent advice. The onus is on the contesting defendants to establish that the documents were read over and explained to her and she put her thumb mark after fully understanding the import of the documents. D. W. 2 is the scribe and admits to be a school friend of defendant No. 5. D. W. 3 is one of the attestors and was working as a teacher of the school of which defendant No. 5 was the Headmaster. The other attestor and identifier was a clerk in the L. R. Company, the proprietor of which, is the brother-in-law of the 5th defendant. Mr. R.N. Mishra accordingly contends that not only the plaintiff had no independent advice, but the documents were Drought into existence with the help of henchmen of the 5th defendant. As apparently there is some force in the aforesaid contention we had to carefully examine the depositions of these witnesses and the reasons given by the learned trial court. The only criticism against D. W. 2 is that he was a school friend of the 5th defendant. This by itself seems to be a very insignificant ground for rejecting his evidence. He, however, deposed that he explained to the plaintiff that in case of dispute with the adopted son, plaintiff would take half of the properties and the adopted son would take the other half. There is no recital in Ex. B to this effect. It is, therefore, argued that Ex. B was not explained to the plaintiff and due execution of the document is not proved. Though the contention cannot be said to be without some force, I am inclined to think that this statement has been made due to forgetfulness on the part of D. W. 2. His memory has not been refreshed by a perusal of Ex. B. At this stage, it would be appropriate to set forth the main recitals of Ex. B.
It purports to be both a deed of adoption and a deed of gift. There was full recital of adoption and of giving and taking. Under it, 4.46 acres of cultivable lands and three houses were gifted by the plaintiff to the 1st defendant. The 1st defendant would enjoy the properties during his life time without any right of alienation. After his death, the properties would vest absolutely in his sons. Though the plaintiff was divested of the properties, the remained in sole charge and management during her life time and even after the 1st defendant attained majority. Thus, a restricted title was conferred upon the 1st defendant, but the dominion and control over the properties were retained by the plaintiff during her life time. The document purported to safeguard the interest of the plaintiff.
Under section 12 of the Act, an adopted child shall be deemed to be the child of his adoptive father or mother for all purposes with effect from the date of adoption. It is, however, subject to the proviso that the adoptive child shall not divest any person of any estate which vested in him or her before the adoption. All the properties of Nilmoni vested in the plaintiff absolutely before the adoption. If there was no gift in favour of the 1st defendant, plaintiff would have been able to absolutely dispose of the properties despite the adoption. By Ex. B a reasonable solution was arrived at. Plaintiff at an extreme old age had the solace of having an adopted child. The 5th defendant had the satisfaction that the adopted child was not wholly helpless and at the mercy of the plaintiff who could devastate the entire property of Nilmoni, which she inheritted absolutely Under Section 14 of the Hindu Succession Act. Plaintiff's rights were also fully protected. She was given complete dominion over the administration of the gifted properties during her life time. Even after attainment of majority, the 1st defendant had no power of interference with her right of management. The powers of both the plaintiff and the 1st defendant to make alienation were curtailed and restricted. It is unnecessary to go into other details. It would be sufficient to say that an arrangement was entered into which was beneficial to the interest of the plaintiff and the 1st defendant. Exs. C and D serve similar purposes.
The 3rd defendant was the foster daughter of the plaintiff, but for the adoption she expected to get the entire property. A house was conveyed to her under Ext. D. This must have been done at the desire of the plaintiff. Some lands and a house were given to the 2nd defendant which was installed by Nilmoni. A permanent provision had to be made for the performance of the deity and seba-puja of the deity. Thus, the entire arrangement is in conformity with the interest of the plaintiff and at any rate, is not prejudicial to her unless it is examined from the sole aspect that she was deprived of ownership of the entire property.
Keeping all the aspects in view, D. W. 2 possibly made the confused statement due to loss of memory that in case there was dispute between the plaintiff and the 1st defendant, the former would get half of the properties. His statement will be taken to mean that in case of dispute between the mother and the adopted son. plaintiff would not be thrown out as a beggar and helpless woman but would be well provided for. This is undoubtedly correct as the plaintiff was given the right of management throughout her life and the right of management necessarily includes a complete provision for her maintenance befitting her status. In this background, the criticism founded on the deposition of D. W. 2 that plaintiff would get half the properties in case of dispute is fully explained.
D. W 3 is an attestor. Doubtless, he happened to be a teacher in the school of which die 5th defendant was the Headmaster, But that by itself is not sufficient to discard his evidence unless intrinsically it does not stand scrutiny. On a perusal of the evidence of D. Ws. 2 and 3, we are of opinion that Exs. B to D were fully explained to the plaintiff whereafter she signed the documents. The way in which the entire properties of Nilmoni including his houses were disposed of in favour of different defendants protected the interest of the plaintiff. The documents were fully explained to her and she executed the same after fully understanding the contents thereof. The onus laid on the contesting defendants has been fully and satisfactorily discharged.
It is true that the 5th defendant was looking after the affairs of the plaintiff after the death of her husband. We, however, failed to understand why three documents would be executed for giving a power-of-attorney. It is further difficult to appreciate why the 6th defendant would sign Ex. B. Under Section 9(2) of the Act, the father, if alive, alone have the right to give in adoption, but such right shall not be exercised save with the consent of the mother unless the mother has completely and finally renounced the world and has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound mind. Under this provision, the signature of the 6th defendant has been obtained in Ex, B. It is difficult to imagine why her signature could be taken if the document had been a power-of-attorney. These little circumstances also support our conclusion that the documents were executed by the plaintiff after they were fully explained to her and she understood the contents thereof. The original of Ex. B is genuine and was properly executed.
All the conditions of Section 16 of the Act have thus been fulfilled and the presumption mat the adoption has been made in compliance with the provision of the Act shall be invoked.
The onus is on the plaintiff to disprove the presumption. The circumstances relied upon in support of the case of absence of adoption mainly are that there was no reason why plaintiff should not adopt a son from amongst the near relations and why she should do it hurriedly after all the male relatives left her house after the Sudhi ceremony of Nilmoni and in the absence of near relations and neighbours. These circumstances by themselves are inconclusive. Defence suggestion that Nilmoni ex-pressed a wish to adopt the 1st defendant may be true in view of the intimacy beween him aed the 5th defendant. If the ceremony of adoption was performed openly and to the knowledge of the near relatives plaintiff might have got a resistance. Performance of ceremony of adoption does not appear to be prohibited in the month of Bhadra or soon after the conclusion of obsequial ceremony. At any rate, these circumstances are indecisive and do not rebut presumption arising Under Section 16 of the Act.
On the findings that the presumption arises in the facts and circumstances of this case and has not been rebutted, plaintiffs suit for a declaration that the 1st defendant is not her adopted son is liable to be dismissed. On the finding that Exs. B to D were genuine and properly executed by the plaintiff, the conveyances made thereunder are valid and the declaration for setting aside those documents cannot be granted.
It is to be noted that in reaching our conclusion that Exs. B to D are genuine and wore executed by the plaintiff, we have not given any weight to the evidence of the Sub-Registrar (D. W. 1). This case comes from the ex-Madras area. Rule 59 of the Madras Registration Rules prescribes that a document executed by a person who is unable to read shall be read out, and if necessary, explained to him. This witness deposes that as the plaintiff wai illiterate, the documents were read over and explained to her by him. He is a public servant of some responsibility and ordinarily much weight is to be attached to his evidence. But in view of his statement in cross-examination that without referring to Exs. B to D he did not remember anything in connection with those documents; that he did not make any endorsement in the documents that he read them out and explained them and that he did not recollect the figure or age of the plaintiff, it would be difficult to accept his evidence in proof of execution of these documents.
4. The learned trial court examined the relevant evidence as to the factum of giving and taking and concluded that there was no adoption. In paragraph 12 of the judgment it discussed the evidence of P. Ws. 1 and 2, D. Ws. 4, 7 and 8 and held that D. W. 4 and not P. W. 1 was the family priest of Nilmoni. P. W. 1 who claims to be the family priest of Nilmoni did not attend Nilmoni's death rites. He did not work as priest when Nilmoni installed the deity (defendant No. 2). In the Uttara Sreni of Jena Sahi in which the house of the plaintiff is situate, P. W. 1 claims to be the priest only of the family of the plaintiff and of no other persons. It is admitted by P. W. 1 that D. W. 4 is the priest of all other persons of Jena Sahi. The learned Additional Subordinate Judge examined the various discrepancies between the evidence of P. Ws. 1 and 2. He also noticed that P. W. is wife is the sworn friend of the plaintiff. Taking all the material evidence and circumstances into consideration, the learned Additional Subordinate Judge held that D. W. 4 was the family priest of Nilmoni. Nothing substantial has been urged by Mr. R.N. Misra for our taking a different view.
In paragraph 21 of the judgment, the evidence relating to giving and taking was examined. The natural father (D. W. 7) and the natural mother (D. W. 8) stated how the giving and taking ceremony took place. Their evidence was fully supported by the family priest (D. W. 4) and by D. Ws, 5 and 6 who respectively participated in that ceremony as Brahma Barana and Fracharak. The evidence of these three witnesses (D Ws. 4. 5 and 6) was closely scrutinised by us. Excepting slight discrepancies here and there, nothing substantial was pointed out for discarding their evidence. We are satisfied on the evidence of these witnesses that in fact there was an adoption ceremony where the giving and taking of the boy took place.
It was vehemently contended that a large many circumstances militating against the probability of an adoption exist in this case. It was urged that though Nilmoni lived issueless up to the 70th year, he never cared to take the Ist defendant in adoption, though he is alleged to have expressed a desire to do so. The proposal of an adoption being made was never mooted and disclosed before friends and relatives so long as they were in the house for the performance of obsequial ceremony of Nilmoni. Neighbours and relatives did not attend the ceremony and the ceremony of adoption was performed within 20 days of death. None of the circumstances either individually or cumulatively outweighs the positive testimony of the aforesaid witnesses, that there was giving and taking. D. W. 7 stated that plaintiff's sister (P. W. 7) attended the adoption ceremony (P. W 7) denied to have done so. The explanation given by D. Ws. 7 and 8 is that P. W 7 was not pulling on well with the plaintiff. There is no corroborating evidence on either side as to the relationship between the plaintiff and P. W. 7. We do not attach much importance to the denial of P. W. 7 that she did not attend the adoption ceremony. On the aforesaid discussion we are of opinion that there was an adoption ceremony.
5. Mr. R.N. Mishra contended that in view of the fact that defendants Nos. 2, 3 and 4 did not contest, plaintiff's suit should have been decreed bv setting aside Exs. C and I) even if Ex. B is upheld We are not much impressed with the argument. Exs. B to D were executed as part of the same transaction and by one and the same arrangement. Once the finding is that Exs. C and D are genuine and properly executed, the suit for a declaration that those documents are not binding on the plaintiff must fail even though defendants Nos. 3 and 4 supported the case of the plaintiff in their written statement and defendants Nos. 2 to 4 did not contest the suit. This contention is accordingly rejected.
6. In the result, the appeal fails, and is dismissed. But in the circumstances of the case, parties to bear their own costs throughout.
7. DAS, J,: I agree.