Narasimham, C. J.
1. These three appeals arise out of one judgment of the Additional Subordinate Judge of Cuttack and are disposed of by one judgment.
2. The main point in controversy in these appeals is whether the plaintiff Biswanath Poddar (principal respondent in all these appeals) is the validiy adopted son of one Raghunath Poddar, a Marwari businessman owning a shop in Cuttack town who died on 9-6-1957 leaving considerable properties.
The genealogical tree given below is helpful for appreciating the claims of the parties:
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Raghunath Ramlal Muralidhar Harihar Ratni
(D. 2 & D. 4)=Narayani
=Shanti Line (said to be P. W. 8
extinct adopted) (D.2)=Rama Deisal
The plaintiff's case was that Raghunath had at a somewhat elderly age, married Shanti Dei (defendant No. 1) who was then a young woman, but did not beget a son through her. For sometime before his death, he was not keeping fit and apprehending death he adopted the plaintiff who is none else but his own sister's son, by taking the boy who was delivered to him by his parents. The actual giving and taking was said to have taken place on 1-6-1957, but as Raghunath was not keeping well, the religious ceremonies connected with the adoption were postponed. Raghunath died eight days later, on 9-6-1957, without completing the ceremonies. It was therefore alleged that on his Sradh day, viz. 20-6-195/, his widow (defendant No. 1) completed the religious ceremonies connected with the adoption, including the performance of the Homa, tying the pugree on the head of the boy and taking him in a procession to the Temple and also executed a registered deed of adoption on 22-6-1957, acknowledging the plaintiff as her adopted son. Subsequently however differences arose because Shanti Dei married an Oriya gentleman and also begot a son through him. The plaintiff further alleged that his adoptive father Raghunath was a member of the joint family the line of his brother Ramlal became extinct, and his third brother is Muralidhar (original plaintiff No. 2) and defendant No. 4 a member of the joint family. The last brother of Raghunath, named Harihar died leaving a widow, Narayani (defendant No. 2) but she relinquished her interest in the property by executing a valid Nadabi deed. Hence according to the plaintiff Muralidhar was entitled to 8 annas share of the properties and the plaintiff and defendant. No. 1 were each entitled to four annas share.
3. The main contest was by Raghunath's widow, Shanti Dei, (defendant No. 1). She emphatically denied the story of adoption of the plaintiff either by her husband Raghunath 8 days prior to his death, or by herself on the Sradh day of her husband. She admitted that she signed and registered a deed of adoption due to special circumstances without understanding the contents of the document. She also stated that plaintiff No. (2) defendant No. (4) had been given away in adoption to his uncle long ago and that he had no interest whatsoever in the disputed properties.
4. As regards defendant No. 1 she alleged that the latter executed a nadabi deed relinquishing all her interest on payment of consideration by defendant 1 and consequently she has no subsisting interest in the same. Defendant No. 2, however, in her written statement claimed the 8 annas interest of her husband and stated that the nadabi was obtained from her without making her fully understand the contents of the same. But she did not enter any contest before the lower Court nor did she lead any evidence whatsoever to show that the nadabi deed was obtained through undue influence, or fraud and without he being made aware of its true nature. Defendant No. 5 is a subsequent purchaser from defendant No. 1 of the materials in the shop house of Raghunath.
5. The trial court held that the plaintiff was the validly adopted son of Raghunath. He further held that the disputed properties were the joint family properties of Raghunath and his brothers, but that defendant No. 4 (original plaintiff No. 2) had no interest in the same as he had been given away in adoption to his uncle long ago. He further held that the nadabi patra executed by defendant No. 2 was not a bona fide transaction and hence held that she was entitled to 8 annas interest in the entire properties of the joint family. As regards the transfer in favour of defendant No. 5 by defendant No. 1 he observed that the transfer was fictitious, collusive and could not be upheld. Hence he decreed the plaintiff's suit preliminarily allotting 4 annas share to him and 4 annas share to defendant No. 1 and the remaining 8 annas share to defendant No. 2.
6. Appeals were filed by defendant No. 5, defendant 1 and defendant 4, against the judgment and decree of the lower court.
7. In the trial court itself defendants 4 and 6 entered into terms with defendant No. 1 and filed a petition to that effect. During the hearing of the appeals also counsel for defendants 1, 4 and 5 stated that they would adhere to the terms of that compromise. Hence, it is unnecessary to consider here whether theadoption of defendant 4 by his uncle as alleged by defendant No. 1 is established.
8. As regards the right of defendant No. 2, the lower Court's finding cannot be supported because it is based practically on no evidence. This defendant executed the nadabi patra (Ext. 6) on 3-7-57 completely relinquishing her interest in the disputed property in favour of defendant No. 1 on receipt of some solatium. It is true that in her written statemert she alleged that the nadabi patra was obtained by undue influence and by practising fraud and that she was not aware of its contents, but she did not care to lead any evidence to support this allegation, in this litigation. On the other hand defendant No. 1 has given evidence to show that the nadabi patra was accepted by defendant 2 after its contents, were duly explained to her. She is supported on this point by defendant 4 who also stated that he was present at the time of the compromise between defendant 1 and defendant 2, and that the compromise was brought about by an Advocate Shri Jugal Kishore Dutta who is now dead. He further claimed to have seen the payment of Rs. 10000/- by defendant 1 to defendant 2 soon after the execution of the nadabi patra. In the absence of any rebutting evidence, the evidence of defendants 1 and 4 on this point should have been accepted, especially when it was the case of the plaintiff also that defendant No. 2 had relinquished her share on accepting the solatium from defendant 1. The lower Court's finding with regard to the bona fide nature of the nadabi patra must be reversed and it must be held that it was vaiidly executed by defendant 2 and that she has no subsisting interest in the disputed properties.
9. Hence the sole question in controversy now is between the plaintiff and defendant No. 1 and it relates to the alleged adoption of the plaintiff, first by Raghu-nath, husband of defendant No. 1 a few days prior to his death, and subsequently ratified by her on the Sradh Day, namely 20-6-1957.
10. As pointed out by the Supreme Court in Kishori Lal v. Mt. Chaltibai, AIR 1959 SC 504 (at p. 508) -.-
'As an adoption results in changing the course of succession, depriving wives and daughters of their rights and transferring the properties to comparative strangers, or more remote relations, it is necessary that the evidence to support it 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.'
The plaintiff has thus very heavy onus to discharge. It is true that he is a minor boy who was only aged 4 or 5 years at the time of his alleged adoption, but this litigation is being fought on his behalf by his grand Uncle (next friend) Sri Parameshwarlal Poddar, Pw. 2. The plaintiffs natural father Ramdeo is said to be a leper and hence he has not come into the witness box, but the plaintiff's natural mother Ratani Dei has deposed on his behalf as P. W. 8. Apart from the evidence of these close relations the plaintiff has also examined some other Marwaris of the locality namely Lakshminarayan Agarwalla (P. W. 3), Bajranglal (P. W. 4) Bhagirath Mull (P. W. 5) Nandlal Chakulia (P. W. 6) Maliram Agarwalla (P. W. 11) and two priests, one family priest named Srinath Sharma (P. W. 13) and another named Ramchandra Sharma (P. W. 14).
Excluding the two priests some of the Marwari witnesses who support the story of adoption appear to be closely related to one another. Thus Maliram Agarwalls is none else but the sister's son of Parameswar Lal, P. W. 2 Bhagirath Mull (P. W. 4) is the sister's husband of Maliram. It is true that Lakshminarayan Agarwalls (P. W. 3), Bajranglal (P. W. 4) and Manilal (P. W. 6) have not been proved to be relations of P. W. 2, but there is clear evidence on record to show that defendant No. 1 has antagonised the Marwari community by contracting marriage outside that community, with an Oriya gentleman, after the death of her first husband Raghunath and be getting a son through the second marriage. Her evidence is to the effect that except her parents all the Marwaris. of Cuttack town had practically ostracised her, and none of them attended her marriage with the Oriya gentleman The plaintiff himself, though a boy aged ten years at the time of his deposition, stated that his troubles with the adoptive mother began when she married the Oriya gentleman and that no casteman amongst the Marwari community attended her second marriage. It was quite natural for the members of the Marwari community to be annoyed with a Marwari widow like defendant No. 1 marrying an Oriya gentleman (though he is permitted by law) thereby practically transferring the properties acquired from her Marwari husband to the family of her second husband. It cannot therefore be stated that the plaintiffs witnesses are disinterested. Their sympathies would be more with the Marwari boy, viz. the plaintiff than with the defendant No. 1.
11. Apart from interestedness of witnesses the plaintiffs story of adoption suffers from many improbabilities and inconsistencies. A striking feature in this case is that the adoption was said to have taken place in two stages. In the first stage Raghunath was said to have merely taken the boy in adoption on 1-6-57. Though he lived for nearly 8 days thereafter, the customary ceremonies connected with the adoption were not performed nor did he care to execute a formal deed of adoption It was only on his Sradh day, namely 20-6-57 that the ceremony was completed by his widow. No satisfactory, explanation has been adduced on the side of the plaintiff to explain why, though Raghunath lived for 8 days after completing the ceremony of giving and taking on l-6-57, he could not complete the religious ceremonies within that period or even execute a deed of adoption with a view to avoid all troubles.
12. Even on the first day of adoption, namely 1-6-1957 the family priest Srinivas Sharma (P. W. 13) and another present named Ramchandra Sharma (P. W. 14) were said to have been present. P. W. 14 was said to have performed the Gruha Shanti Homa at the time of the first adoption. Thus when the priests were in attendance and Gruha Shanti Homa was performed by them on 1-6-57 it should not have been difficult to complete the other religious ceremonies connected with the adoption. The family priest P. W. 13 was specifically questioned on this point and his explanation was that as the relations of Raghunath were not present the adoption ceremony was not completed on the first occasion.
This explanation is quite plausible, but unfortunately the other witnesses for the plaintiffs have not supported him on this point. Thus, according to Bhagirath Mull, at the time of the first adoption Parameswar Lal (P. W. 2) Nandlal (P. W. 6), Lakshminarayan (P. W. 3), 2 Brahmins, meaning (P. Ws. 13 and 14) were present. Nindial (P. W. 6) also stated that at the time of adoption Maliram.Agarwalla, Bhagirath P. Ws. 13 and 14, Lakshminarayan, defendant 1, the natural parents of the plaintiff and two other persons were present. Thus it is clear that almost all the near relations of the family and also some other Marwaris were present on the first occasion and two priests were also in attendance to perform the Gruha Shanti Homa. Hence it is somewhat strange that Raghu-nath did not care to get the customary ceremonies connected with the adoption completed then and there and thought of postponing them to a future date.
At any rate the explanation given by the family priest (P. W. 13) for not completing the ceremonies on the first occasion is not borne out by the evidence of P. Ws. 4 and 5. Naither the plaintiff's natural mother Ratani (P. W. 8) nor his grand uncle Parameswar Lal has given a satisfactory explanation as to what was the special necessity for completing the adoption in two instalments. It is true that Raghunath was ill at that time, but all the necessary parties were present before him and the condition of his health would itself have been a good ground for completing the ceremonies without delay with a view to avoid future troubles.
13. Then again, there is no satisfactory explanation as to why Raghunath did not care to execute a deed of adoption though he lived for 8 days after completing the giving and taking ceremony. He was a resident of Cuttack town, and the Sub-Registrar's office is close by and he could easily have asked the Sub-Registrar to come to his house to enable him to execute and register the deed of adoption.
14. The lower court thought that the subsequent deed of adoption executed by defendant 1 on 22-6-57 (Ext. 3/a) is the best corroboration of the plaintiff's story of the earlier adoption. But in my opinion, it is the best evidence to discredit the story of adoption. The original deed of adoption is said to have been destroyed and it is unnecessary to consider who was responsible for the same, as each party is accusing the other. But the certified copy has been proved and the ministerial officers of the Registration Department who prepared the certified copy have also been examined as witnesses (P. Ws. 7, 9 and 10).
The recital in the certified copy is indeed very strange. It is stated therein that Raghunath expressed on many occasions during his lifetime, a desire to adopt the plaintiff and that on 20-6-1957, the date when the Sradh ceremony was performed the adoption ceremonies were also completed. The so-called adoption of the plaintiff by Raghunath on 1-6-57 is completely omitted. On a fair construction of the document therefore it would appear that the story then put forward was that there was no adoption during the lifetime of Raghunath, that he merely expressed his desire on many occasions to his wife to adopt plaintiff, and that as authorised by him, defendant 1 adopted the plaintiff on his Sradh Day (20-6-1957).
The obvious question that arises for consideration is why the fact of first adoption was completely omitted in this document. It is the plaintiff's own case that on the date of execution of the document, viz. 22-6-1957 the parties were on friendly terms. Moreover the plaintiff's own natural mother Ratani, his grand uncle Parameswar Lal and his witness Mali Ram were all present when this document was being scribed and executed. His natural father Ramdayal was also there. With so many of his well-wishers and close relations present at the time of execution of the document it is obvious that the first adaption would have been mentioned therein if, in fact, it had taken place. The facts were then fresh in the memory of all the parties because the document was being executed only 22 days after the date of first adop-tion. Of the story put forward in the plaint, viz. that the adoption was completed by Raghunath on 1-6-1957 and his widow (defendant No. 1) merely performed the customary religious rites on 20-6-1957 -- after the death of Raghunath -- be true, it would certainty have found place in the deed of adoption itself. None of the plaintiffs witnesses is in a position to give a satisfactory explanation for this fatal omission.
Parameswar Lal (P. W. 2) was entirely silent on this point. This document is proved on behalf of the plaintiff and it was the duty of the plaintiff's witnesses to give a satisfactory explanation for this omission. Ratani is also silent and the only witness on the side of the plain-tiff who has attempted some sort of explanation is Mall-ram (P. W. 11). He stated that as the draft of Ext. 3/a was prepared by Advocate Shri Jugal Kishore Datta (since dead) he did not suggest the mention of the fact of previous adoption in the document. But this explanation is quite unconvincing. It was brought out during the cross-examination of defendant No. 4 by the plaintiff himself that the Advocate Shri Jugal Kishore Dutta was present when Ext. 3/a was being executed. If in fact the story of the first adoption said to have taken place on 1-6-1957, had been narrated to him by the parties, he would surely have mentioned that fact in the document, knowing its importance. As there is no suggestion of collusion between the Advocate Sri Jugal Kishore Dutta and defendant No. 1 it will be idle to surmise that he deliberately omitted to mention it in the document with a view to favour defendant 1 and that the plaintiff's witnesses were misled by his conduct. The Advocate is now dead. He was said to be lying seriously ill in Calcutta when the evidence was being recorded by the lower Court. The plaintiffs could easily have taken out 3 commission for his examination if they wanted to clarify the matter.
15. The most natural inference, therefore, from the omission of any reference to the first adoption in Ext. 3/a is that the adoption, in fact, never took place. At that time all the parties were anxious to make it appear that the widow of Raghunath, namely defendant No. 1 on the authority given to her by her husband, validly adopt-ed the plaintiff on the date of the Sradh ceremony, namely 20-6-1957.
16. The story of adoption which could have been validly put forward before the coming into force of the Hindu Adoptions and Maintenance Act 1956 on 21-12-1956 was of no help to the plaintiff in this litigation in view of the provisions of that Act. Clause (v) of Section 12 of that Act says that the adopted child shall not divest arty person of an estate which vested in him before the adoption. Hence, if the plaintiff had stuck to his story of adoption as put forward in Ext. 3/a, he could obviously get no relief in the present suit because on Raghunath's death on 9-6-1957, his properties vested in his widow (defendant No. 1) and any subsequent adoption made by her on 20-6-57 cannot have the effect of divesting her of those properties.
17. The plaint was actually filed on 11-7-57 about twenty days after the execution of the deed of adoptions (Ext. 3/a) on the instructions of the plaintiff's grand uncle Parameswarlal Poddar (P. W. 2) and Muralidhar (defendant 4). The parties were then indeed in a quandary, in view of the change in law brought about by the aforesaid Act. The suit for partition would fail if the plaintiff stuck to the story as given in the deed of adoption. Hence the ingenious story of a first completed adoption by Raghunath during his lifetime was put forward and with a view to reconcile' this story with the recital in Ext. 3/a it was further added in paragraph 6 of the plaint that the subsequent adoption by defendant No. 1 was made with a view to complete only the religious ceremonies relating to the adoption, which were customary prevailing in the caste. This only shows the ingenuity of the Advocate who drafted the plaint, but it does not improve ths case of the plaintiff in any way.
Even then the parties were not sure about the exact date to be given for the first adoption. Paragraph 5 of the plaint is delightfully vagire on this point and says that 'a few days' before his death Raghunath adopted ths boy. One can understand some ambiguity about the date of adoption if it is a case of ancient adoption about which nobody can have clear idea. But the plaint in this case was drafted within one month and eleven days after the alleged date of adoption and the plaintiff's grand-uncle Parameswarlal Poddar has categorically stated that the first adoption took place on 1-6-57. He is a signatory to the plaint on behalf of the minor plaintiff and it is highly improbable that he would have omitted to give the date of adoption in the plaint if in fact it had taken place. The adoption being the foundation of the plaintiff's suit itself, the date of adoption is obviously the most important fact to be alleged in the plaint, especially when it is of a recent date. The omission to mention the date of the adoption must lead to an adverse inference against the plaintiff's case. P. W. 2 was specifically questioned on this point in cross-examination and he stated :
'I cannot give any reason as to why the date of adoption is not given in the plaint........... I cannotsay why it was so written in the plaint.'
It was his duty to give a satisfactory explanation for the omission and if he would not give any explanation, the inference is obvious that at the time of drafting the plaint though he was prepared to make an averment that there was a completed adoption by Raghunath during his lifetime, he had not made up his mind as to what specific date should be put forward as to the date of adoption. Hence he thought it discreet to leave it vague by saying that the adoption took place a few days before Raghunath's death.
18. This conclusion is strengthened by certain obvious inconsistencies in the evidence of witnesses about the date of first adoption, It should be remembered in this connection that the witnesses are all Marwaris, highly intelligent, trained in business affairs and generally very accurate as regards dates of transactions. They may not know the British Calendar accurately, but they certainly Know the Hindu or Marwari calendar. P. W. 2 stated in examination in chief that the first adoption took place on 1-6-1957 but when cross-examined he made a startling admission to the effect that the first adoption took place in the month of Bhadra that he could not remember the Tithi and that the second adoption took place in the month of Aswin. The month of Bhadra generally falls between the middle of August to middle of September and similarly, Aswin is from the middle of September to the middle of October. An adoption which was alleged to have taken place on 1-6-57 and 20-6-57 could not possibly have been in the month of Bhadra and Aswin. A shrewd old Marwari like Parameshwarlal aged 55 years could not possibly have made a mistake as regards the Hindu months when the second adoption took place. There is no explanation on the side of the plaintiff to reconcile thbse contradictions in the dates. They only show that the first adoption had not, in fact, taken place, and the witness broke down during cross-examination which took place nearly four years after the filing of the plaint. Similarly, P. W. 6 Nandalal Chakolia frankly admitted in cross-examination that he could not given the month or date of adoption or the year of adoption. Such an answer from a Marwari witness aged 37 years is not capable of an innocent explanation.
19. P. W, 14 stated that Gruha Shanti Homa was performed on the date of the first adoption. Ratani (P. W. 8) also admitted that Homa was performed on that day. But Bhagirath Mall (P. W. 5) was shrewder than these two witnesses and apprehended that if he admitted the performance of Gruht Santi Homa on the date of first adoption, the further question that would arise would be : why the adoption ceremony itself was not completed. Hence he went to the length of saying that no mantra was recited and no Homa was performed on the date of adoption -- thus contradicting the other two witnesses. Similarly, Lakshminarayan Agarwalla also stated that no Puja was performed on that date.
Apparently, the witnesses examined to prove the adoption were in difficult predicament. If they admitted the presence of the two Brahmins priests, the question that would naturally arise would be why these people were there if they were not required to perform any religious ceremonies. But, if only a partial admission is made that they performed some other religious function such as Gruha Santi Homa, the further question would arise as to why the religious ceremonies connected with the adoption also, were not performed then and there, when all the necessary parties were fully assembled. This explains the contradictions and discrepancies in the evidence of the witnesses. The Brahmin priests, especially the family priest, will not ordinarily be asked to be present at the house of their Jajman unless some important religious function, such as the ceremony of adoption, was required to be performed.
20. To sum up therefore-
In the earliest solemn document executed by defendant No. 1 within 13 days after her husband's death, the story of adoption of the plaintiff by her husband 8 days before his death is completely omitted, though that document was executed at a time when good relationship existed amongst the members of the family. In the plaint also (which was prepared within twenty days thereafter) though an ingenious attempt was made to assert the adoption by Raghunath, during his lifetime, the date of that adoption was left vague. In fact defendant No. 1 in paragraph 10 of her written statement adversely commented on the omission of that date in the plaint. Even then, the date of adoption was disclosed for the first time only four years later, when P. W. 2 was examined in Chief, but his own answers in cross-examination and the evidence of other witnesses are full of discrepancies about the date of adoption and also about the other religious ceremonies that were said to have taken place on that date. In this state of the evidence, I must hold that the plaintiff has failed to discharge the heavy onus that lay on him, to establish the story of adoption, as pointed out in the aforesaid judgment of the Supreme Court in AIR 1959 SC 504. I am thereforesatisfied that the so-called adoption of the plaintiff by Raghunath in his life-time is not believable.
21. In this view of this conclusion, it will perhapsbe academic to consider whether the plaintiff was validlyadopted by defendant (1) on 20-6-1957 after the deathof her hu'sband Raghunath. Under the new law she isundoubtedly entitled to adopt even without authority fromher husband and where there is a registered documentof adoption there is a strong presumption under Section 16of that Act in favour of adoption. But as already pointedout the plaintiff does not and could not possibly claimany right in this litigation on the basis of adoption bydefendant No. 1. His Advocate also did not ask for analternative relief to that effect. The plaintiff has stakedhis entire case on a completed act of adoption by Raghunath during his life-time and once that case is held tobe unbelievable his suit must fail.
22. For these reasons the appeals are allowed, and the judgment and decree of the lower Court are set aside and the plaintiffs suit is dismissed with costs throughout. There shall be one set of costs which shall be apportioned equally between defendant No. 1, defendant No. 4 and defendant No. 5.
23. I agree.