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Damodar Lal Vs. Lalli Lal and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtRajasthan High Court
Decided On
Case NumberCivil Second Appeal No. 650 of 1971
Judge
Reported inAIR1985Raj55
ActsHindu Law; Hindu Adoptions and Maintenance Act, 1956 - Sections 4 and 10; Evidence Act, 1872 - Sections 114
AppellantDamodar Lal
RespondentLalli Lal and ors.
Appellant Advocate M.M. Tiwari and; Dalip Singh, Advs.
Respondent Advocate D.D. Patodia and; Syed Manzoor Ali, Advs.
DispositionAppeal allowed
Cases ReferredIn G. Appaswami Chettiar v. R. Sarangapani Chettiar
Excerpt:
- - being unsuccessful, defendant 1 has preferred this appeal. on the basis of the said document it is urged that if damodar lal would have gone in adoption to murli dhar, that fact would have been stated in the application as well as in the order granting succession certificate. it is interesting to notice here that commenting on what saunaka had said in describing the ritual of adoption that a iq=pnk; if the rule was intended to be mandatory it is reasonable to expect that the author who as the treatise itself shows was a master of logic and well acquainted with the rules of logic and other rules which deal with the question of mandatory injunctions would give clear indication of that view. although the court speaks in a part of the judgment with special reference to the banaras.....m.c. jain, j. 1. this is an appeal by defendant 1 against the judgment and decree dated october 29.1971, of the district judge, jaipur district. jaipur, affirming the judgment and decree of the civil judge, jaipur district, jaipur dated september 30, 1970.2. the plaintiff lalli lal, respondent 1, instituted a suit on 11-3-1964 for partition against the appellant damodar lal, defendant 1, and shyam sundar and shri mohan, defendants 2 and 3. the plaintiff gave the following pedigree table of the family in para i of the plaint, -- amba bux | --------------------------------------------- | | |govind narain laxmi narain murlidhar | | ------------------------------ | | parwati sagra alias bohonri bai ( married to ramgopal) ----------------------------------------------------- | | | |shri mohan.....
Judgment:

M.C. Jain, J.

1. This is an appeal by defendant 1 against the judgment and decree dated October 29.1971, of the District Judge, Jaipur District. Jaipur, affirming the judgment and decree of the Civil Judge, Jaipur District, Jaipur dated September 30, 1970.

2. The plaintiff Lalli Lal, respondent 1, instituted a suit on 11-3-1964 for partition against the appellant Damodar Lal, defendant 1, and Shyam Sundar and Shri Mohan, defendants 2 and 3. The plaintiff gave the following pedigree table of the family in para I of the plaint, --

Amba Bux

|

---------------------------------------------

| | |

Govind Narain Laxmi Narain Murlidhar

| |

------------------------------

| |

Parwati Sagra alias Bohonri

Bai ( married to

Ramgopal)

-----------------------------------------------------

| | | |

Shri Mohan Lalli Lal Damodar Lal Khushwakt RAi

(D.3) (Plaintiff) (D.1) |

Shyam Sunder

(D.2)

The immovable property sought to be partitioned, was of Murli Dhar, who died in the year 1923. His brothers Govind Narain and Laxmi Narain predeceased him. Sagra alias Bohonri Bai and Parwati were the daughters of Laxmi Narain. Parwati died issueless. The plaintiff thus alleged that after the death of Murli Dhar, the plaintiff and the defendants 1 and 3 and the father of defendant 2, became the owners of the property of the deceased Murli Dhar. Khushwakt Rai died in the year 1939. In this manner the plaintiff and the defendants became the owners of the property of Murli Dhar, described in para 2 of the plaint. The plaintiff claimed one-fourth share in the property and sought a decree for partition by metes and bounds.

3. Defendants 2 and 3 supported the plaintiffs claim in their written statement. However, defendant 1 contested the suit. He gave the following family pedigree in his written statement,--

Hardev Bux

|

-----------------------------------------------

| |

Radha Kishan Amba Bux

| |

Murlidhar (came --------------------------------

in adoption) | | |

| Govind Narain Laxmi Narain Murlidhar (want

| ----------------

Damodar Lal | |

(by adoption) Mst. Bhonri Parwati Damodar Lal

(married to Ramgopal) (by adoption)

|

--------------------------------------------------------------

| | | | |

Hazarilal Khushwakt Rai Damodarlal Lalli Lal Sri Mohan

| (deft. 1 - (pltff.) (deft. 3)

Shyam Sunder adopted by

(deft. 2) Murlidhar)

4. It was alleged by him that after the death of Radha Kishan, Murii Dhar, his adopted son, became the sole owner of his property and the plaintiff and the other defendants have no share in the suit property. After the death of Murli Dhar, he was in possession of his property as an owner. These averments in the plaint that the parties were joint in mess up to 1954 and that defendant 1 remained Karta and Manager of the family of Ramgopal, were denied and it was alleged that when defendant 1 came in adoption to Murlidhar, he ceased to have any relation with the family and the property of his natural father Ramgopal. It was alleged that his tenants are putting up in the property. He separated from his father Ramgopal and Ramgopal and other panics to the suit also were living in another house of Muliramji Tadi situated in Pasta Khajanewala, Chandpol Bazar. It was alleged by him that he was taken in adoption by Murli Dhar and given in adoption by his natural father Ramgopal in accordance with the customs of community and Dharm Shastra on Baisakh Sudi 6, St. 1975 corresponding to 16-5-1918. On the death of Murlidhar he performed his rites and turban was tied to his head on the death of Murli Dhar on Pos Sudi 2, St. 1960. Since then he is in possession of the property as an owner being his adopted son. It was also alleged by him that he leased out, mortgaged and sold some of the properties of the deceased Murli Dhar and in all these documents, defendant 1 has been described as the adopted son of Murti Dhar. He also detailed the acts performed by him as a son within the knowledge of Ramgopal and the parties to the suit without any objection from them. So it was pleaded that the plaintiff is estopped from denying adoption of defendant 1. It was also averred that the plaintiff and defendant 2 had taken one room each on rent and one more room was taken by the plaintiff from defendant 1 in connection with the marriage of defendant 2, but he refused to redeliver its possession. The suit was originally instituted in the court of the Civil Judge, Jaipur City, but was subsequently transferred to the Court of Civil Judge, Jaipur District. The learned Civil Judge, Jaipur District, tried the suit and decreed the same. It was found by him that the appellant Damodar Lal was adopted by Murlidhar, but the adoption was invalid. Issue 9 relating to adverse possession was decided against the appellant Damodar Lal and consequently it was decreed that each party to the suit has one-fourth share in the property mentioned in para 2 of the plaint and they are entitled to have it partitioned by metes and bounds. Defendant 1 Damodar Lal went in appeal and the learned District Judge, Jaipur District, affirmed the findings relating to adoption and invalidity of adoption and adverse possession. Being unsuccessful, defendant 1 has preferred this appeal.

5. I have heard Shri M.M. Tiwari, assisted by Shri Dalip Singh, advocates, for the appellant, and Shri D.D. Patodia, assisted by Shri Syed Manzoor Ali, advocates, for the respondents.

6. On behalf of the parties to this appeal all sorts of arguments have been advanced, but it appears that the controversy centres rouhd the question of validity of adoption of the appellant by Murlidhar. Although both the courts have found that Damodar Lal was an adopted son of Murli Dhar, still on behalf of the respondents it has been contended before us that the fact of adoption has not been proved and the finding is perverse and contrary to evidence. The date of adoption, as alleged by the appellant, is 16-5-1918, but contrary to this it has been found that the adoption of the appellant took place somewhere after the death of Hajari Lal, the elder son of Ramgopal who died on 7th August, 1923, and before the death of Murli Dhar. Adoption of Damodar Lal in the lifetime of Hajari Lal could not have taken place, as Hajarilal was previously adopted by Murli Dhar. Such a finding contrary to the pleading could not have been arrived at Besides that, from the evidence of D.W. 7 Kokila Bai, it would appear that in fact no ceremony of giving and taking took place. Only on the death of Murli Dhar turban tying ceremony took place and according to her that was the only ceremony of adoption. So the finding of adoption is not based on evidence. Shri D.D. Patedia also referred to the document Ex. 5, which shows that after the death of Murli Dhar, an application was made to Adalat Diwani Sarki Raj Sawai Jaipur on 27-1-1924 by defendant 1 under the guardianship of his father Ramgopal for a succession certificate on the death of Murli Dhar, in which it was stated that Murli Dhar died issueless and his last rituals were performed by Damodar Lal and Pagri of Murli Dhar was tied on his head on the 12th day of the death of Murli Dhar, so he alone is the heir of Murli Dhar. After recording evidence, the court granted succession certificate to Damodar Lal. In the title of the order Damodar Lal's parentage was shown as Ramgopal. On the basis of the said document it is urged that if Damodar Lal would have gone in adoption to Murli Dhar, that fact would have been stated in the application as well as in the order granting succession certificate. Document Ex. 5, therefore, negatived the fact of adoption.

7. I have carefully considered the above submissions of Mr. Patodia, but I am unable to find any substance in the same. Both the courts have dealt with the oral and overwhelming documentary evidence on record. The learned District Judge has catalogued the documents in which Damodar Lal has been described as the adopted son of Murti Dhar. The documents relate to the dealing with the property of Murli Dhar by Damodar Lal and some of the documents are attested by Ramgopal, the natural father of Damodar Lal and by Khushwakt Rai and Lalli Lal Plaintiff. There are statements of D.W. 4 Bhonri Lal, D.W.5 Murli Dhar and D.W.6 Govind Narain. As regards the statement of Mst. Kokila Bai it may be stated that in the examination-in-chief she categorically stated that she was present at the time of ceremony of adoption. The adoption took place some 50 years back. Ramgopal gave Damodar Lal in adoption and Murli Dhar took him in adoption. She was related to Murlidhar, being her sister-in-law's husband. In cross-examination she stated that after the death of Murlidhar, turban was tied to Damodar and that was the ceremony of adoption. It may be mentioned that it has not been clarified in cross-examination as to how she stated in her examination-in-chief that Murlidhar took the boy in adoption and that at the time of the ceremony of adoption giving by Ramgopal and taking by Murlidhar took place. Solely on the basis of the aforesaid kind of statement of Mst. Kokila Bai in cross-examination, it cannot be taken that the fact of adoption found by both the courts below stands negatived. Similarly on the basis of document Ex. 5 the finding as to adoption cannot be disturbed. Whatever has been stated in Ex. 5, cannot be considered binding on the appellant, as that is not his admission. The courts below have referred to another document Ex. A/33 dated 3-3-1926, which is an order relating to Matni proceedings. In that document this fact specifically finds mention that Damodar Lal was adopted by Murli Dhar in his lifetime. Inam and Tankha grants were resumed on the ground that the appellant is not the natural son of the deceased Matni holder, still the fact of adoption of Damodar Lafrby Murli Dhar finds mention as far back as 1926. Thus, the finding as to adoption has been reached by the courts below on the basis of sufficient and satisfactory evidence on record, which by no stretch of imagination can be considered to be perverse and based on no evidence.

8. The main controversy, which needs consideration in the present appeal, is as to whether the adoption of the appellant was invalid? It has been found to be invalid on the ground that the mother of the appellant could not in her maiden state legally marry Murli Dhar. The mother of the appellant Mst Sagra alias Bhonri Bai was Murli Dhar's brother's daughter and being brother's daughter, she could not be married with her uncle Murli Dhar. The opinion amongst the High Courts as to the binding character of the said rule is divided. The Bombay High Court and the Andhra Pradesh High Court have taken the view that it is only recommendatory and not mandatory, whereas the Allahabad, Patna, Madras and Calcutta High Courts have taken a different view. The question has been examined by the Supreme Court in Abhiraj Kuer v. Debendra Singh AIR 1962 SC 351 and Vallabhalalji v. Mahalaxmi Bahuji Maharaj AIR 1962 SC 356, in which Abhiraj Kuer's case (supra) was relied upon. In Abhiraj Kuer's case (supra) the question was regarding the validity of the adoption of wife's sister's daughter's son. Their Lordships found that the marriage of a Hindu' with his wife's sister's daughter is not invalid in law. Still their Lordships of the Supreme Court considered the character or nature of the rule of Viruddha Sambandha marriage and the nature of the rule of Viruddha Sambandha in matters of adoption. Their Lordships considered the statements of law as regards adoption contained in Dattak Mimansa of Nanda Pandit and Dattak Chandrika of Kuvera and also the observations made by their Lordships of the Privy Council in Bhagwan Singh v. Bhagwan Singh (1899) 26 Ind App 153 and another Privy Council decision. Their Lordships observed as under ; --

'There can be no doubt that in laying down the rule that the adoption of the son of a woman who could not have been married by the adoptive father because of incongruous relationship (Viruddha Sambandha) Nanda Pandit was adding to the existing state of law. It is interesting to notice here that commenting on what Saunaka had said in describing the ritual of adoption that a iq=PNk;kog son should be adopted the Dattak Chandrika observed at P. 14 :--

iq=PNk;k iq=lk/k`';a fu;ksxkfnuk

Lo;eqr~iknu ;ksE;Rofefr;kurk~

(Reflection of a son -- the resemblance of a son, -- or in other words the capability to have been begotten by the adopter, through appointment, and so forth). (Sutherland's translation). The Dattak Mimansa adopts this view, and introduces the further doctrine of (Viruddha Sambandha) relationship as a bar to adoption.'

'It is unnecessary for us to examine what authority should be attached to this serious addition to the texts for determining who can be adopted, as for reasons to be presently mentioned we are of opinion that assuming that this rule should be accepted as of authority. Nanda Pandit has stated this merely as a recommendation and not as a mandatory prohibition. For many years now courts have recognised the position that not only the Dharma Sutras and Grihya Sutras but also the commentaries thereon and digests mingle without hesitation statements of law which are intended to be recommendations merely with statements which are intended to be mandatory.'

Their Lordships then considered the observations of Sir William Macnaughten and the words of caution expressed in Balusa Gurulingaswami v. Balusu Ramalakshmamma (1899) 26 Ind App 113 (PC) and observed that importance of this caution by no means decreased in the years that have gone by. Their Lordships then considered the words used by Nanda Pandit. 'Virddma Sambandha Putro Varjniyah' and observed as under : --

'(One who if begotten by the adoptor would have been the son of prohibited connection must be excepted -- Sutherland's translation), he does not say anything about what would happen if Viruddha Sambandha Putra was adopted. If the rule was intended to be mandatory it is reasonable to expect that the author who as the treatise itself shows was a master of logic and well acquainted with the rules of logic and other rules which deal with the question of mandatory injunctions would give clear indication of that view. This was all the more reasonable to expect as he was introducing a new rule. But he contents himself with saying that fo:) lEcU/k iq=ks otZuh;% We do not think this language that adoption of a son of a Viruddha Sambandha girl should be avoided, can properly be taken as mandatory so that the rule must be obeyed on pain of the adoption being otherwise invalid in law.'

The text of Ashvalayana was also considered, which authority was mentioned by Nanda Pandit himself. Then their Lordships in para 14 concluded as under : --

'It appears clear to us that Ashvalayana himself did not intend the rule against marrying a Viruddha Sambandha girl as a mandatory prohibition. This must have been more clear to Nanda Pandit and so when extending Viruddha Sambandha to adoption on the very basis of Ashvalayana's rule against Viruddha Sambandha marriage, Nanda Pandit could not have but intended his rule against Viruddha Sarnbandha adoption as a mere recommendation and not a mandatory prohibition.'

9. It appears that the learned District Judge proceeded to conclude the question on the basis of the observations made by their Lordships of the Supreme Court in para 17 of the judgment of the aforesaid case. It may be stated that in para 17 their Lordships simply proceeded to consider the question, on the assumption that it is no longer open to challenge the correctness of the rule at least so far as the Banaras School is concerned, as they are still of the view that the argument is of no avail for the simple reason that they see no reason to see that there can be no legally valid marriage between a person and his wife's sister's daughter. In Vallabhalalji's case (supra) relying on Abhiraj Kuer's case (supra) it was observed that rule in Dattak Mimansa against Viruddha Sambandha Putra is only recommendatory and not mandatory.

10. In Hindu Law by Mulla, FifteenthEdition, 1982 by Sunderlal T. Dasai, Part IIIrelating to persons who may be lawfully taken' in adoption. Section 480, deals with 'who may beadopted'. One of the rules stated is that he must not be a boy whose mother the adopting father could not have legally married; but this rule had been restricted in many recent cases to the daughter's son, sister's son, and mother's sister's son. This prohibition, however, does not apply to Shudras. Even as to the three upper classes, it has been held that an adoption though prohibited under this rule, may be valid, if sanctioned by custom. At page 598 under the heading 'Relationship of adoptive, father to natural mother', the aforesaid rule is dealt with as under : --

'The rule laid down in Sub-section (3) refers to the relationship of the parties prior to marriage. It is founded upon the fiction 'that the adopting father has begotten the boy upon his natural mother; therefore it is necessary that she should be a person who might lawfully have been his wife.' For this reason a man cannot adopt his daughter's son, or his sister's son, or his mother's sister's son, for he cannot marry his daughter, his sister, or his mother's sister; such an adoption cannot be validated by the application of the doctrine of factum valet. If the prohibition referred to above were to be interpreted literally, there would be many other relations incable of being adopted But this prohibition has been confined in recent cases to the specific cases of the daughter's son, sister's son, and mother's sister's son, and it has been held that it does not extend to other relations.'

11. In Hindu Law by S.V. Gupte, AIR Publication, 3rd Edition, Vol. 2, the question has been dealt with elaborately, 'who may be adopted', has been discussed under Article 9. Article 9 states, --

'Article 9. Any male Hindu may be taken in adoption provided he is -

(1) of the same caste as the adoptive father.

(2) of an age and status to be taken in adoption, and

(3) not so related to the adoptive father as to have made marriage between the adoptive father and his natural mother in her maiden state either (i) illegal or (ii) obnoxious.

Exceptions :--(1) proviso (3) does not apply to Sudras.

(2) among the twice-born classes an adoption contrary to the rule contained in proviso (3) may nevertheless be valid as a matter of custom.

Proviso (3) to Article 9 has been discussed in paras 105, 106, 107 and 108. He gave the basis of the rule as under : -- 'This rule owes its origin to the maxim that the adopted boy must be the reflection of a son. 'The prohibition based on near relationship had its origin chiefly in the Dattaka Mimamsa, a work of Nanda Pandit who relied solely upon the texts of Saunak and Sakala.' The proposition (roughly and broadly stated) 'that a boy whose natural mother the adoptive father could not have legally married in her maiden state is ineligible for adoption' rests purely on an inaccurate rendering by Mr. Sutherland of a passage in the Dattaka Mimamsa of Nanda Pandit and particularly on the unhappy rendering of the expression 'Viruddha' Sambandha' as 'prohibited connection' which was later construed by the Courts as referring to all the prohibition for a legal marriage contemplated or prescribed by the Hindu Law. The rule is founded upon the fiction 'that the adopting father has begotten the boy upon his natural mother; therefore it is necessary that she should be a person who might lawfully have been his wife.'

In para 106, the learned author dealt with the scope of the rule and expressed that,--

'If the prohibition contained in the general rule founded upon the fiction that 'the adopting father has begotten the boy upon his natural mother' were to be interpreted strictly, a host of relations would be disqualified. But the Supreme Court has now held that the Ashwalayana's rule 'against marrying a girl within the viruddha sambandha (within prohibited relationship) and its extension by Nanda Pandit in his Dattaka Mimamsa in the matter of adoption are recommendatory and not mandatory provisions and a marriage or adoption in breach of the rule is not invalid. Although the case itself involved the adoption of a wife's sister's daughter's son and a wife's relations are not within the rule of viruddha sambandha unless, of course, in a given case a wife's relation was also the husband's relation before marriage the Court examined the texts bearing on the subject and' held' that Ashwalayana's rule was recommendatory and there was not a single decision of the High Courts holding a contrary view. While it made a reference to the conflict of decisions between the High Court of Bombay and other High Courts, it held that an adoption in breach of that rule was not invalid. Although the Court speaks in a part of the judgment with special reference to the Banaras school of the Mitakshara with which it was concerned the decision is good for all schools; the decisions to the contrary holding an adoption invalid on the basis of the general ground that it is against the rule of Viruddha Sambandha must therefore be regarded as impliedly overruled. This decision was followed by the Supreme Court in another case relating to an adoption in the godha form.'

12. In para 107 he considered the three specific cases of adoption of (1) a daughter's son, (2) a sister's son, and (3) a mother's sister's son, and stated that according to all schools it is settled law that such an adoption is contrary to law and void. Other relations, he dealt with in para 108. With regard to decisions by the Patna, Bombay and Allahabad High Courts, the learned author expressed as under : --

'The High Court of Patna had held in a case between parties governed by the Banaras school, that the adoption of the wife's sister's daughter's son was not invalid. In another case the same High Court held valid the adoption of the cousin's sister's son's daughter's son. These decisions of the Patna High Court were however distinguished in a later decision of the same High Court which held that the adoption of the cousin's daughter's son was invalid, but this decision is no longer good law. Following this decision of the Patna High Court and dissenting from its earlier decisions and from the view of the Bombay High Court, the Allahabad High Court held the adoption of a consin's sister's son to be invalid but this is ' . no longer good law.'

13. In Deoki Nandan v. Madanlal AIR 1958 Andh Pra 693, the Division Bench of the Andhra Pradesh High Court examined the question of validity of adoption. In that case the adoptee, in the matter of relationship, was an uncle to the adopter and would amount to a nephew adopting an uncle. The adoption was questioned as violating the accepted principle of Hindu Law that a person could not be adopted whose mother the adopter could not have married. It was held that the rule is only recommendatory rather than mandatory and the adoption was found to be valid.

14. In Ramchandra Krishna Joshiv. Gopal Dhondo Joshi (1908) ILR 32 Bom 619, Choubal, J., in his separate judgment concurring with the judgment of Batchelor, J., observed that the rule of exogamy or consanguinity and Sapindaship as prescribed for marriage have no natural application or relevancy to the law of adoption. On the contary in the order of selection for adoption the first choice is directed in favour of a Sapinda, failing him a Sagotra and in default of these a stranger, excepting always the specific instances mentioned, viz., a daughter's son, a sister's son, and the mother's sister's son. With regard to the Privy Council decision in Bhagwan Singh v. Bhagwan Singh (1899-26 Ind App 153) (supra) it was observed that it refers to the specially excepted case of mother's sister's son and as regards the decision of the Madras High Court in Minakshi v. Ramananda (1887) ILR 11 Mad 49 (FB), it was observed that this decision did not preclude the same Court deciding in the subsequent case of Ragavendra Ran v. Jayaram Rail (1897) ILR 20 Mad 283 that the prohibition of Viruddha Sambandha as given in the Grihya-Perishishta, and the Dattaka Mimamsa was only hortatory and not mandatory; and that case expressly decided that the adoption of a wife's sister's son was valid. Further reference has been made to a decision of the Bombay High Court in Vyas Chimanlal v. Vyas Ramchandra (1900) ILR 24 Bom 473. The argument was that the natural mother and the adoptive father were Sagotra Sapindas and Minakshi's case (supra) was cited. It was observed that 'the late Mr. Justice Ranade seems clearly to confine the text of Shakala to the specified instances only, i.e., daughter's son, sister's son and son of the mother's sister. It is difficult to assume that the fact of the natural mother and adoptive father being Sagotras should not have been present to a Brahman Judge and scholar of Justice Ranade's reputation; and it thus appears to me that the case of Vyas Chimanlal goes further than the present case. It was held in that case that the rule 'no one can be adopted whose mother the adoptor could not have legally married' is confined to the specific instances of a daughter's son, a sister's son and the mother's sister's son.

15. In Ado Rai v, Hure Rai AIR 1958 Patna 233 the adoption was held invalid on the ground that the adoptive father and the mother of the adopted son were within the prohibited degrees, so there could be no lawful marriage between them. The adopted son was mother's sister's son's doughter's son.

16. In Babu Ram v. Smt. Kishan Dei AIR 1963 All 509 cousin sister's son was taken in adoption. The adoption was held to be invalid.

The earlier Patna decisions were dissented and Ado Rai's case (supra), Minakshi's 'case (supra) and one Calcutta decision Hari Das Chatterji v. Manmatha Nath ILR (1937) 2 Cal 265 and Udairaj Singh v. Mt. Raj Kunwar AIR 1929 Oudh 469 were followed. It may be mentioned that Abhiraj Kuer's case (AIR 1962 SC 351) (supra) with regard to recommendatory or mandatory character of the rule of marriage and its extension to matters of adoption was not considered. In my opinion, in the light of what has been observed in Abhiraj Kuer's case (supra), it cannot be held that the Niyoga or the marriage rule or Viruddh Sambandh rule, as extended to the matters of adoption, is binding and is prohibitory in character. On the contrary what has been held is that the rule is only recommendatory. The applicability of rule is only confined to three specific cases and I agree with the opinion expressed by the learned author Shri S.V. Gupte that the law as laid down in Ado Rai's case (supra) and Babu Ram's case (supra) and in other such cases is no longer good law. In this view of the matter the finding arrived at by the courts below holding the appellant's adoption to be invalid cannot be sustained. The rule being recommendatory. I hold the appellant's adoption as valid.

17. Mr. M.M. Tiwari, learned counsel for the appellant, alternatively, also submitted that the question of validity of appellant's adoption can also be examined on the basis of custom as well as on the basis that the parties to the suit are Kayasthas and they are as such Sudras and there is no prohibition to adoption of brother's daughter's son amongst the Shudras, so on both the scores the appellant's adoption is valid. He submitted that with regard to custom, the evidence of the witness Bhonrilal (D.W, 4) has not been properly appreciated. From his evidence such a custom is well proved in their community that the brother s daughter's son can be taken in adoption. As regards the arguments that the parties are Shudras, Mr. M.M. Tiwari, placed reliance on a decision of the Calcutta High Court in Raj Coomar Lall v. Bissessur Dyal 1984 ILR 10 Cal 688.

18. As regards custom, a finding of fact has been arrived at, which cannot be interfered with in second appeal. The statement of Bhonrilal has been discussed by both the courts below. His evidence falls short of the requirement to prove the custom. He cited two instances. One instance was of the period when the Hindu Adoptions and Maintenance Act, 1956, had already come into force and with regard to second instance, cited by him, he could not give detailed particulars of the boy, who went in adoption and the real father of the alleged adopted son. From the solitary statement of Bhonrilal, custom cannot be held to be proved, more particularly when even he failed to give the details of the instances stated by him. Thus, the finding relating to custom calls for no interference.

19. As regards the Varna of the parties to the suit, it may be mentioned that the decision of the Calcutta High Court (supra) cannot help the appellant in the present case: That decision is confined to Kayasthas of Bengal and the finding is based on the evidence adduced in that case. On the basis of the decision of the Calcutta High Court, it cannot be held that Kayasthas are Shudras in other parts of the country. In the present case there is no material, on the basis of which it can be held that the parties are Shudras and do not rank amongst the three superior classes.

20. Mr. M.M. Tiwari, learned counsel for the appellant, also vehemently urged that the appellant's adoption took place prior to 1923 and it came to be challenged only in 1964, after more than 40 years. Presumption of validity of adoption should be raised in favour of the appellant. Reliance was placed by him on a decision of the Supreme Court in L. Debi Prasad v. Smt. Tribeni Devi AIR 1970 SC 1286, Voleti Venkata Ramarao v. Kesaparagada Bhaskararao AIR 1969 SC 1359 and Kewalchand v. Smt. Phoolabai 1976 WLN (UC) 265.

21. In L. Debi Prasad's case (supra), their Lordships of the Supreme Court relying on the observations of the Judicial Committee of the Privy Council in Rajendro Nath Haldar v. Jogendra Nath Banerjee (1870-72) 14 Moo Ind App 67 observed in the case of a Hindoo, long recognition as an adopted son, raised even a stranger presumption in favour of the validity of his adoption, arising from the possibility of the loss of his rights in his own family by being adopted in another family.

25. In Voleti Venkata Ramarao's case (AIR 1969 SC 1359) (supra) it was observed that having regard to the long lapse of time and the recognition of Rajendraswararao as the adopted son of Bhaskara Rao, the strongest presumption arises in favour of the validity of the adoption.

23. In Kewalchand's case (1976 WLN (UC) 265) (supra) it was observed in cases of adoption, a presumption of validity of adoption may be gathered from the status of the adopted son in the adopted family and its recognition by the members of the family for a number of years. In that case the adoption took place some 50 years back.

24. It is true that in the cases relied upon by the learned counsel for the appellant, it has been held that the presumption of validity of adoption can also be raised when adoption has taken place long back and the adopted son has been recognized to be such by the family concerned. But the question of presumption has been considered in the light, as necessary evidence may not be forthcoming on account of lapse of time. But where the question of invalidity is based on admitted relationship of the adopter with the mother of the adopted son and when it can be found that the son, who has been adopted, could not have been adopted in law, then the question of raising of presumption does not arise. Had it been found that the appellant's adoption is invalid, as the same is prohibited by text, in my opinion, the validity of the appellant's adoption could not be upheld on the ground that presumption of validity should be raised, as has been contended by the learned counsel for the appellant. Thus, I find no merit and substance in the above submission of Mr. Tiwari.

25. Mr. Tiwari also based his argument on the doctrine of factum valet, but the said doctrine has no application and is ineffectual when the adoption is in contravention of the provisions of texts. The question has been considered by Mulla in Hindu law in para 513A, where it has been stated that the texts relating to the capacity to give, the capacity to take, and the capacity to be the subject of adoption are mandatory. Hence the principle of factum valet is ineffectual in the case of an adoption in contravention of the provisions of these texts.

26. The institution of adoption has its origin in antiquity and the object of adoption have been both spiritual and temporal. A son is adopted so that he may devotedly serve the adoptive parents in his or her old age and after his or her death may succeed to the estate. A boy to whom love and affection can be bestowed, he will naturally be the subject of adoption and one for whom there is no love and affection, will not be adopted by an adoptive parent. Religious rites can also be performed by him after the death of the adoptive father. The rigour and rigidity of the texts in course of time had been whittled down by customs and their hortatory, mandatory or prohibitory character, came to be destroyed by passage of time. It cannot be denied that customs had influenced the texts to a very large extent and customs had its own sway contrary to the texts even in cases of daughter's son, sister's son and mother's sister's son in three regenerated classes. In such a state, in my opinion, it would not be proper to pronounce the appellant's adoption as invalid.

27. In G. Appaswami Chettiar v. R. Sarangapani Chettiar, AIR 1978 SC 1051 their Lordships of the Supreme Court in para 13 took into account the changing concepts of adoption. In that case the adoption took place some three years before the coming into force of the Hindu Adoptions and Maintenance Act, !956. Still it was observed that though the Act came into force in 1956 and this adoption was in 1953 before the Act came into force we have to take into account the changed circumstances particularly disappearance of the basis of the requirement of sapinda's consent on the ground of presumed incapacity of the woman.

28. Mr. M.M. Tiwari, learned counsel for the appellant, lastly, alternatively, argued the plea of adverse possession. He vehemently urged that present is a case where the appellant's title to the property of Murli Dhar stands perfected by adverse possession. The appellant dealt with the property of the deceased Murli Dhar as a son, to the knowledge of all concerned and his actions were not objected to. On the contrary they were consented to. Mr. Tiwari submitted that soon after the death of Murli Dhar, succession certificate was granted to the appellant. In escheat proceedings objections against escheat were submitted by the appellant and by none else. The properties' were mortgaged, sold and leased out. Agreement to sell the properties of the deceased were entered into. The properties were repaired and new rooms and constructions were made. The appellant's name was entered into the Municipal record as owner of the properties of the deceased. The appellant's father, the plaintiff, and his other brothers had been the attestators of several documents, of which reference has been made by the learned District Judge, while dealing with the question of fact of adoption. So it cannot be denied that the appellant was asserting his title to the properties left by the deceased Murli Dhar and was in enjoyment of the same as such. When such has been the long user and conduct of the appellant, the conclusion is irresistible that the appellant has perfected his title by adverse possession. The cause of action to the plaintiff and the other defendants, had arisen long long back when they had become major, but they failed to institute any action against the appellant for decades. Simply because the plaintiff and defendant 2 happened to be in possession of three rooms in one Haveli, it cannot be found that there has been no ouster of the plaintiff and the other defendants from the property of the deceased Murli Dhar. At least so far as the properties, which are in exclusive possession of the appellant, in the circumstances of the case, adverse possession is fully established and the plaintiffs suit for partition in respect of that property is not maintainable.

29. When I have upheld the factum and validity of appellant's adoption, it is not necessary to go into the disputed question of adverse possession, which is mixed question of fact and law. The finding as to adverse possession may normally be a finding of fact, but whether inference of ouster from the proved circumstances of the case arises or not, it will become a question of law. Although from the side of the respondents it has been urged that the finding as to adverse possession is a finding of fact not liable to be interfered with in second appeal, but I need not enter into this controversy, as the same is not necessary to be gone into for the decision of this appeal.

30. In view of my finding of the validity of adoption, this appeal succeeds.

31. In the result, the appeal is allowed, the judgment and decree of the Courts below are set aside and the plaintiff s suit for partition is dismissed. However, in the circumstances of the case, the parties shall bear their own costs throughout.


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