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Biswanath Agarwalla Vs. Sm. Dhapu Debi Jajodia and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtKolkata High Court
Decided On
Case NumberA.F.O.D. No. 102 of 1960
Judge
Reported inAIR1966Cal13
ActsHindu Law; ;Registration Act, 1908 - Sections 18, 51, 51(3), 57, 57(3) and 57(5); ;Evidence Act, 1872 - Sections 13, 63(1) and 65
AppellantBiswanath Agarwalla
RespondentSm. Dhapu Debi Jajodia and ors.
Appellant AdvocateI.P. Mukherji and ;D.P. Mukherji, Advs.
Respondent AdvocateA.C. Bhabra and ;J. Srivastava, Advs.
DispositionAppeal dismissed
Cases ReferredMt. Ballo. v. Ram Kishan
Excerpt:
- mitter, j.1. this is a plaintiffs appeal from a decree dismissing his suit for a declaration that he was the adopted son of one rampratap udhani alias rampratap agarwalla who died in the year 1940 and for possession of the estate of the said deceased. the plaintiff further claimed that an immovable property in calcutta namely premises nos. 1 and 2 jagabandhu boral lane had been purchased by the said deceased in the benami of his wife munia and that a deed of trust executed by the said munia in respect of the said property was void. the learned trial judge held against the plaintiff both on the question of adoption and on the question of benami purchase. the plaintiff has not pressed the appeal on the question of benami or the validity of the deed of trust and has limited the appeal to the.....
Judgment:

Mitter, J.

1. This is a plaintiffs appeal from a decree dismissing his suit for a declaration that he was the adopted son of one Rampratap Udhani alias Rampratap Agarwalla who died in the year 1940 and for possession of the estate of the said deceased. The plaintiff further claimed that an immovable property in Calcutta namely premises Nos. 1 and 2 Jagabandhu Boral Lane had been purchased by the said deceased in the benami of his wife Munia and that a deed of trust executed by the said Munia in respect of the said property was void. The learned trial Judge held against the plaintiff both on the question of adoption and on the question of benami purchase. The plaintiff has not pressed the appeal on the question of benami or the validity of the deed of trust and has limited the appeal to the sole question of adoption.

2. Rampratap Udhani came to Calcutta from the village of Ghatoa in Rajasthan many years ago. He started a sweetmeat shop at premises No. 16, Mallick Lane, at first renting a room in the said premises. His business seems to have prospered to such an extent that he was able to purchase the said property some years afterwards. He died in the year 1940 leaving behind him his third wife Munia, a daughter Ganpati born in 1906 by a predeceased wife, two daughters by the name Rukmani born in the year 1916 and Dhapu Devi born in the year 1921 and a son Ghasirarn born in the year 1929. There is some discrepancy in, the evidence as to whether Rampratap had married thrice or whether he had married four times but that is hardly material. It is undisputed that Munia was his last wife whom he had married in 1914. A number of children, mostly daughters, were born to Munia. Apart from Ghasirarn there was only one son born to Rampratap by Munia in the year 1919 by 'the name of Jethmull who died in the year 1921. Ghasirarn was born in the year 1929 and died in the year 1943. Rukmani was married to one Chiranjilal and had three sons born to her namely Biswanath the plaintiff in 1937, a second son by the name of Hem born in 1944 and a third by the name of Rajendraborn in December 1949 only a fortnight before Rukmani's death. The adoption of Biswanath is alleged to have taken place at Ghatoa on September 25, 1950 corresponding to Bhadta Sudi 14 Sambat Year 2007 (Ananta Chaturdashi day). The ceremony of adoption is alleged to have been followed by the execution of a deed by Munia immediately afterwards which is said to have been registered at a place called Nawa at a distance of about 20 miles from Ghatoa on October 26, 1950. The original deed is not forthcoming but a certified copy of it was adduced in evidence. As the adoption is by a widow the plaintiff had to allege and substantiate that she had authority to adopt given to her by her 'husband. The plaintiff further alleged that there was a custom prevalent amongst the Agarwalla community to which the parties belonged whereby a daughter's son could be validly given and taken in adoption. The suit had been filed against Dhapu Devi Jajodia and her husband Chadanmull but later on Ganpati the daughter by a predeceased wife of Rampratap was also added as a defendant. Munia died on March 5, 1956 and the suit was filed on May 17, 1956. Dhapu Devi and Chandanmull filed their written statements in June 1956 while Ganpati's written statement was filed in April 1957. The defendants denied not only the factum of adoption but also the authority to adopt and the existence of the custom relied on. No mention having been made of the execution of the alleged deed of adoption 'in the plaint nothing was said about this document in any of the written statements.

3. Of the several issues framed by the trial Judge we are concerned only with issue No. 1 which has four parts namely:

(a) Did Munia have authority from her husband to adopt the plaintiff, as a son unto herhusband?

(b) Did Munia adopt the plaintiff as a sou unto her husband on September 25, 1950?

(c) Is there any sustom and practice prevalent amongst the Agarwalla Community to which the parties belonged that a daughter's son can be validly given and taken in adoption and

(d) Was the plaintiffs adoption, if any, valid?

4. The learned trial Judge records a definite finding that Munia had no authority from her husband to adopt the son unto him. He found himself unable to hold that the ceremony of adoption namely the giving and taking of the boy had been performed but he took the view that the deed had been executed by Munia. On the question of custom the learned Judge found that the plaintiff had not been able to prove any community custom but was of the view that it a family custom had been pleaded he might have felt inclined to uphold it. In the result, he found that the plaintiffs case of adoption had not been proved and dismissed the suit.

4a. In order to appreciate the evidence adduced by the parties in this case it is necessary to take note of the pedigree table which was marked Ex. 'A' (see p. 16) in the trial Court. As most of the witnesses on the question of adoption are agnates of Rampratap the pedigree table may be set out as appearing at pages 36(a) to 36(d) of Part II of the paper book.

SUIT No. 1942 of 1938

Exhibit A

11-8-1959

Name not remembered

___________________________________________|____________________________________________

| |

Srikssen (Dead) Tarachand (Dead)

| |

Name Not Known (dead) Name Not Known (dead)

| |

|__________________________________________________________ |

| | |

Lackiram (Dead) Nolaram (Dead) |

___________|__________________________________ | __________________|________

| | | | | Gangabux (Dead) | | | |

Jawaniram Ganesh Ram | Ramdaval Rampratap | Bijaylal Sitaram Iswardas Godhuran

Chunni Lal |

(Dead) (Dead) (Given in adoption) Dead (died 10th May 1940 | (Dead) (Dead) (Dead) (Dead)

(Dead) | Baisakh Sudi S | | |

| __________________| S.Y. 1997) | | |

Ramnarayan (Dead) | | | | | Harchandran Hardev Chandramani

| Raghu Nath Kanhya Lal Munna Lal | | By adoption

| (Dead) | | |

| | | |

| Smt Mania Debi | Tansukhai

Goberdhan married 1914,died 5th march |

1956 ____|____________________

| | | |

| Mangilal Ramkumar Surajmal

| (Dead) (Dead) (Dead)

______________________________|_____________________________ | |

| | | | | | | | Ghisa Lal taken in adoption

Ganpati Rukmani Jethmal Dhapu Ghasi Ram Biswanath |_________________________________

Born 1906 Born 1948 Born 1919 Born 1921 Born 1929 adopted on | | |

Defit No. 5 Died Dec. 1949 Died 1921 Married Chandan Died 30.7.45 25.9.50 Murali Dhar (dead) Lachman(Mad) GhisaLal

Chunni Lal Mal 1935 Deft Sravan Badi = | Given

Married 1932 No. 1 14 S. Y. 2000 Bhadra Sudi Bhawarlal in

| 14 S.Y. 2007 Adoption

________ |_______________________

| | |

Biswa Nath Hem Rajendra

Born 19.3.27 Born 17.8.44

5. The plaint filed in this suit merely recites in paragraph 8 that Munia took the plaintiff in adoption unto her deceased husband on September 25, 1950 having authority from him to do so. This is taken a step further by an affidavit of Raghunath Rai, an agnate of Rampratap affirmed on June 28, 1956 to the effect that Rampralup had verbally authorised his wife Munia to take a son in adoption to him if and when necessary some days after the death of their son Jethmail. The oral evidence as to the giving of authority to adopt was adduced by the said Raghunath, his brother Kanhaiyalal and another agnate of Rampratap by the name of Harchand Rai. Kanhaiyalal was the first witness to be examined on this point. (His Lordship narrated his evidence and continued).

6. Raghunath Rai who was senior to Kanhaiyalal. by about 5 years said in his examination in chief that Rampratap was not less than 40 years of age when he married Munia. Like Kanhaiyalal he too was able to remember that a large number of children had been born to Rampratap in regular succession with the only difference that according to him the birth of the first daughter Rukmani was followed by the birth of two sons both of whom died. (His Lordship further perused the evidence of this witness and continued).

7. The last witness on this issue was Harchand Rai who was examined after the defendants had closed their case and counsel for Ganpati had started addressing the Court. Like the two previous witnesses he too was an agnate of Rampratap though more removed than the others. He was of the same age as Raghunath Rai and said in examination in chief that in early life he used to work in Rampratap's shop. He too happened to remember the birth and death of all the progeny of Rampratap and Munia. (His Lordship went through his evidence and proceeded).

8. The learned trial Judge did not accept the above testimony. In his view these three persons were extremely partisan witnesses and their evidence was otherwise undependable. He further found the story to be inherently unacceptable. T find myself in entire concurrence with what the learned Judge said. (His Lordship alter discussing the evidence of these witnesses, continued).

I find myself unable to accept the story that Munia a young woman of 19 or 20 years should say to her husband who was about 45 years of age that she was feeling nervous about her future in view of her husband's health. Far less was there an occasion when the husband in order to console his wife would tell her that she could adopt a son il: he died. A husband may well give his wife authority to adopt if she is barren of past the child-bearing age or if the son born of wedlock be dead and there be no hope of haying any more children. Those circumstances did not obtain in Rampratap's family and I see no reason to take a view different from that of the learned trial Judge on this point.

9-11. Moreover the learned Judge's remark that these persons were partisan witnesses and as such undependable is amply justified by theirtestimony. (His Lordship examined this aspect of the question and agreed with the learned Judge that these witnesses were partisan. His Lordship then continued).

12. Mr. Mukherjee, learned counsel for the appellant argued that these three witnesses were independent witnesses, that they were in no way interested in the result of the suit, that they were agnates of Rampratap who knew him and his family intimately and that there was no reason why their testimony should not be accepted. He drew our attention to the judgment of the Judicial Committee in Mutsaddi Lal v. Kundan Lal, 33 Ind APP 55 (PC) where the Judicial Committee upheld the judgment of the Allahabad High Court in appeal from that of the Subordinate Judge who had disbelieved the case of authority to adopt given by one Badri Das to his wife during his last illness. There it was found that Badri Das had died childless on October 27, 1888. In 1891 the widow executed a deed of sale of a village purchased by her after her husband's death. Three years thereafter one of the reversioners filed a suit for a declaration of his rights. It was found that immediately before the institution of this suit the widow had adopted the respondent Kundanlal as a son unto her deceased husband. The Munsif who tried the suit held that the adoption was valid. This was upheld in appeal by the Subordinate Judge, Saharanpur. The reversioners then brought a suit to set aside the adoption. Both the Subordinate Judge and the Allahabad High Court held that the adoption had taken place as a fact but they differed on the question as to whether the widow had been authorised by her husband to adopt. The Subordinate judge did riot believe the witnesses on the question of authority on the ground that they were partial to the defendant. The High Court upset this finding holding inter alia that

'the evidence was worthy of credit, and amply sufficient to justify a finding in favour of the appellant.'

The High Court went on to add

'not merely is it ample in itself, but it is supported by the probabilities of the case, and under these circumstances, we find the authority to adopt has been proved.' Delivering Judgment of the Board Sir Andrew Scoble remarked 'the story told in this suit is the same as that told in the suit before the Munsif of Kairana one or two years previously; and that in meantime the appellants had ample opportunity to test its accuracy; but they produced no evidence in rebuttal, am! were unable materially to shake the witnesses for the respondent on cross-examination. Mussamal Jamna (widow of Badri Das) had died before she could be examined in this suit; but her statement made in the previous suit in the Munsif's court was put in evidence. Mussamat Jumna had there stated that six or seven days before his death her husband. Badri Das had told her in the forenoon to adopt a boy. He did not mention any boy but had said 'adopt whomsoever you may like. Adopt the boy of the man of Sirasawa only.' The widow had further said 'Badri Das had been ill for threemonths and when ha told me to adopt a son he perhaps had no hope of his life...... I and mythree sisters-in-law (husband's sisters) were there at that time. ........ .These three sisters-in-laware now dead'.

13. Mr. Mukherjee relied on the above remarks of Sir Andrew Scoble and contended that there was a close likeness between the facts of Mutsaddi Lal's case, 38 Ind App 55 (PC) and the case before us in that no evidence in rebuttal had been produced and the witnesses were not shaken in cross-examination.

14. On behalf of the respondents reliance was placed upon another judgment of Judicial Committee in Dal Bahadur Singh v. Bijai Bahadur Singh, 57 Ind App 14: (AIR 1930 PC 79). In this case the facts were as follows: One Ajit Singh died childless in 1860 leaving Mussamat Sultan Kunwar his widow. In 1914 the widow purported to adopt to her husband one Amar Bahadur Singh. The Judicial Committee found that

'so far as the documents and ceremonies are concerned it is not now impeached, the challenge is against the power to adopt and not the process by which the adoption was carried out.'

After the adoption the widow proceeded to obtain mutation of the names in the register. This was opposed by the reversioners but the officer before whom proceedings took place had to decide the dispute on the basis of possession, Sultan Kunwar died in 1915 and litigation ensued. The subordinate Judge decided against the adoption. This was reversed by the High Court at Allahabad. The evidence in support of the authority to adopt consisted of two elements only viz., (1) the statement of Sultan Kunwar in the mutation proceedings and (2) the statement by an old man examined in the case. The subordinate Judge thought that the evidence of the lady was not admissible but the High Court took a different view. The Judicial Committee agreed with the view of the subordinate Judge and consequently the question turned on whether the evidence of the old man was acceptable. Delivering judgment Lord Buckmaster observed

'He is an old man. No one knows quite how old he is, and there is no exact reason given as to why he should have recollected except the circumstances that he gives, viz., that he found Musammat Sultan Kunwar unhappy and weeping, because she was to be left utterly helpless, and that she was consequently told to adopt.'

According to the Board it was

'remarkable that if she was given power to adopt as some solace for her sense of desolation, that she did not attempt to exercise that power, or, as far as one can see, refer to or act upon it in any way until some fifty years had elapsed.'

According to the Board

'it would be impossible to rely on this piece of evidence, and this piece of evidence alone, for the purpose of satisfying the very grave and serious onus that rests upon any' person who seeks to displace the natural succession of property by alleging an adoption. In such a case the proof requires strict and almost severe scrutiny, and the longer the time goes back from the date when the power was given to the time when it comes to be examined, the more necessary it is, having regard to the fallibility of human memory and the uncertainty of evidence given after the lapse of such time, to see that the evidence is sufficient and strong.'

15. The facts of this case are not closely parallel to those in either of the above cases before the Judicial Committee. In Mutsuddilal's case, 33 Ind App. 55 (PC) the Judicial Committee relied on the evidence of the widow herself in a previous suit where she had been examined. The story told by her was a very cogent one, viz., that the authority to adopt had been given during the last illness of her husband when he had no hope for life. This authority had been acted upon within three or four years from the death of the husband. Although the subordinate Judge did not believe the witness on the question of authority, the High Court took a different view and the Judicial Committee preferred the High Court's conclusion on this point. The judgment of the Judicial Committee does not show that the witnesses were unworthy of credit. This is in direct contrast to the facts in Dal Bahadur Singh's case . There the only evidence admissible was that of an old person deposing about the occasion when authority is alleged to have been given more than fifty years afterwards. The Board found itself unable to place reliance on the testimony of this man. But it is clear, however, from these two cases that in deciding whether the oral testimony as to authority to adopt can be accepted the following queries must be answered:

(1) What are the circumstances in which the husband gives authority to his wife to adopt? Are they childless? Is there no likelihood of their begetting a son in view of the health and age of the spouses?

(2) What is the occasion for the husband giving his wife such authority? Was it given during a serious illness of the husband when as in Dal Bahadur Singh's case he had no hope for life?

(3) Was the occasion such at which the wit nesses deposing about it were likely to be present? '

(4) Is there any particular reason for the witnesses to remember the conversation if there is a long gap between the occasion and the date when they come to speak about it in Court?

16. In this case, the giving of the authority to adopt was deposed to some forty years after the date on which it is alleged to have been given. It was not the case of a childless person who had no hope of life. The evidence bears out that at the relevant time Rampratap was quite virile and no more than of middle age having children born to his young wife at regular intervals. The story of Ms serious illness is untrue there being material contradiction on this point in the evidence of three witnesses. These were partisan to the case of the plaintiff and at least one of them was definitely egging Chiranjilal on to file a suit while another professing to know of the authority to adopt and with pretended knowledge of the ceremony of adoption was notslow in raising a dispute with Dhapu and obtaining a right to possession of Rampratap's share in some of the joint properties. The whole story is so improbable as to be worthy of any credit. Issue 1(a) was, therefore, rightly decided against the plaintiff appellant.

17-26. Before proceeding to examine the evidence adduced about the actual ceremony of adoption and the subsequent conduct of the parties to test whether the adoption had taken place as a matter of fact it is necessary to investigate whether Munia had at any time expressed any desire to adopt the plaintiff. (His Lordship considered the evidence and continued).

27. It was contended on behalf of the respondents that the oral evidence at its face value did not establish that Biswanath had been adopted by Munia as a son to Rampratap. The questions and answers to all the four witnesses Harchandrai, Jagannath, Chiranjilal and Biswanath show that Chiranjilal gave Biswanath in adoption to Munia and she took Biswanath in adoption as her son. None of the witnesses stated that Munia accepted and adopted Biswanath as a son of Rampratap. Reliance was placed on the judgment of the Judicial Committee in the case of Chowdry Padam Singh v. Koer Udaya Singh, 12 Moo Ind App 350 (PC) where it was observed at page 356-

'The question as to the adoption of the appellant is one entirely of fact. There is no doubt and indeed it was fully admitted, that adoption might be made by a widow under an authority conferred upon her for that purpose by her husband. Of course, such authority must be strictly pursued, and as the adoption is for the husband's benefit, so the child must be adopted to him and not to the widow alone.'

On the evidence adduced the Board agreed with the Sudder Court that the appellant had failed to prove that he was lawfully adopted as a son of Hem Singh by Khoosal Kooer in pursuance of authority conferred upon her for that purpose by her husband. Great stress was laid on the fact that the name of the adopted son was not mutated for that of the Kushal Kooer in the hooks of the revenue collector after the date of adoption and that all the acts of the widow with respect to Hem Singh's property appeared to have been dictated by a desire to continue to be the owner of the properties during her life and to secure succession to them after her death to the appellant. Incidentally Sir James W. Colvile, delivering the judgment of the Board remarked:

'The documentary evidence produced on the part of the respondent tends much more strongly to throw suspicion upon the veracity or the accuracy of the witnesses who speak to the fact of the adoption by Khoosal Kooer, as it is wholly inconsistent with the idea of any such adoption having taken place.'

28. As the adoption is alleged to have taken place only nine years before the hearing of the suit it is strange that better and more reliable evidence could not be adduced about it. This short coming was however said to be made up by the execution of the deed by Munia and registration of it. The original deed is not forthcoming and a copy thereof purported to be certified under the Registration Act (hereinafter referred to as a certified copy) was put in and exhibited as secondary evidence. The document is alleged to have been registered in book No. 5 of the Sub-Registrar's office at Nawa. It is described as a deed of adoption bearing stamp worth Rs. 10. The text of it is as follows:

'I Mussamat Mania, widow of Rampratap. . with a view to continuing the line of descent of my deceased husband Rampratap and for the purpose of spiritual welfare of his departed soul, having taken in adoption to my deceased husband, the son of Chiranjilal Agarwalla.... by thename of Biswanath who is my real and natural grandson, declared by this deed of adoption that from this day the abovenamed Biswanath as the natural son of myself and my husband, has acquired all kinds of and entire rights in all my own and my husband's own and ancestral movable and immovable properties which would have belonged to our natural son ..........have executed this deed of adoption out of my own accord ...... . . so that there be proofand the same may be of use at the proper time. Finis date 25-9-50. Miti Bhadra Sudi 14, Sambat Year 2007, Monday, Munia Bai. Stood witness Kanhaiyalal Kamkhin of Ghatwa after reading the deed of adoption and at the request of Munia. Stood witness I Hardeo Mahajan of Ghatwa at the request of Munia Bai. Stood witness Ganesh Ram Mahajan of Ghatwa at the request of Munia Bai, Document presented by Mnsst. Munia Bai widow of Rampratap caste Agarwal village Ghatwa on 21-10-50 between the hours of 11-40 A.M.

Present at the Sub-Registrar's Office, Nawa, Mussammat Munia Bai widow of Rampratap Agarwalla who is known to pleader Brij Mohan who is known to me. Haying heard the contents of the document Munia Bai admitted the same and declared that there being no issue son she adopted Biswanath and executed the deed which might be registered. Upon the admission being approved the same has been registered.

21-10-50.

Signed Parosram Purohit

Sub-Registrar, Nawa.

Mania Bai

Brij Mohan Misir

Vakil, Nawa,

Witness Jagannath Mahajan

Witness Mangilal Purohit

Registered on No. 6 in pages 156

and 157 of volume 2 of Register Book No. 5

dated 29-10-50 and fees charged as under.'

29. The defendants persistently suggested to the witnesses examined on behalf of the plaintiff that no adoption ceremony had taken place at Ghatwa and that no deed putting on record the fact of adoption had ever been executed by Munia; In other words the deed was a fabricated one and got up for the purpose of this case. Chiranjilal went to the length of saying that he had himself inspected the note of registration at Nawa Office and found the signature of Munia in the books maintained there. Even though this was hotly disputed by the defendants no effort was made to produce the books in Court to establish that Munia had gone to Nawa in connection with the registration of this document &put; her signature in one of the books kept by the Sub-Registrar. The certified copy was sought to be put in evidence on the plea, that the original was with the defendant Dhapu. The learned trial Judge did not record a finding to this effect but he held that the original was lost and admitted the copy of the document although in view of the subsequent conduct of the parties he found that it was not a clinching document. On behalf of the defendants respondents it was argued that the certified copy was not admissible in evidence at all.

30. The document may be registered if at all under Section 18(f) of the Registration Act. The books to be maintained at the Registrar's Office are shown in Section 51 of the Act. Book 1 is to be a register of non-testamentary documents relating to immovable property; book 2 is to be A record of reasons for refusal to register. Book 3 is tho register of wills and authorities to adopt while Book 4 is the miscellaneous register. Besides these in the office of the Registrar Book 5 is to be maintained as a register of deposits of wills. Sub-section (2) of Section 51 shows that in Book I shall be entered or filed all documents or memoranda registered under sections 17, 18 and 89 which relate to immovable property, and are not wills. Sub-section (3) of the section shows that in Book 4 shall be entered all documents registered under Clauses (d) and (f) of Section 18 which do not relate to immovable property.

31. It is clear therefore that the document alleged to have been executed by Munia could only have been registered in Book 4. The deposit of wills is covered by Part IX of the Act which contains sections 42 to 46. Under Section 42 any testator may, either personally or by duly authorised agent, deposit: with any Registrar his will in a sealed cover superscribed with the name of the testator and that of his agent (if any) and with a statement of the nature of the document. .Under Section 43(1) the Registrar if satisfied that the person presenting the same for deposit is the testator or his agent, shall transcribe in his register book No. 5 the superscription aforesaid and shall note in the same book and on the said cover the year, month, day and hour of such presentation and receipt, and the names of any persons who may testify to the identity of the testator or his agent and any legible inscription which may be on the seal of the cover. Under Sub-section (2) the Registrar shall then place and retain the sealed cover in his fire proof box. Section 44 provides for withdrawal of the scaled cover deposited under Section 42 with the Registrar. Under Section 45 if, on the death of a testator who has deposited a sealed cover under Section 42, application be made to the Registrar who holds it in deposit to open the same, and if the Registrar is satisfied that the testator is dead, he shall, in the applicant's presence, open the cover, and, at the applicant's expense, cause the contents thereof to be copied into his book No, 3. Under Sub-section (2) when such copy has been made, the Registrar shall re-deposit the original will. Section 55 lays down what indexes are to be maintained by registering officers. Under Section 57(1) books Nos. 1 and 2 and the indexes rotating to book No. 1 shall be at all timesopen to inspection by any person applying to inspect the same; and, subject to the provisions of Section 62, copies of entries in such books shall be given to all persons applying for such copies. Under Sub-section (2) of Section 57 subject to the same provisions, copies of entries in book No. 3 ancl in the index relating thereto shall be given to the persons executing the documents to which such entries relate, or to their agents, and after the death of the executants (but not before) to any person applying for such copies. Under Sub-section (3) copies of entries in book No. 4 and in the index relating thereto shall be given to any person executing or claiming under the documents to which the entries respectively refer, or to his agent or representative. Under; Sub-section (5) all copies given under this section shall be signed and sealed by the registering officer, and shall be admissible for the purpose of proving the contents of the original documents.

32. It is clear from the above that so far as book No. 5 is concerned there is no provision for the giving of copies to be made out by the Registrar. It is strange that the Registrar at Nawa purported to give copies to no less than three persons of a document purported to have been registered in book No. 5. The whole affair is highly suspicions.

33. So far as the Evidence Act is concerned a certified copy of the document alleged to have been executed by Munia could only be tendered under the provisions of Section 63(1) of the Act. Secondary evidence of the document can only he given on the facts of this case either under Section 65(a) or (e) of the Act. To come under Clause (a) of Section 65 it must be shown that the original is or appears to be in possession or power of the person against whom me document is sought to be proved or any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in Section 66, such person does not produce it. The learned trial Judge did not accept the evidence that the original of the document was with Dhapu. I agree with his finding and I shall deal hereafter with the evidence on this point. Under Clause (e) secondary evidence may be given when the original is a public document within the meaning of Section 74. So far as this Section is concerned secondary evidence may be given only if the record in the Registrar's Office is a public record kept in any State of private documents. Under Section 76 every public officer having the custody of a public document which any person has a right to inspect, shall give that person on demand a copy of it on payment of the legal fees therefor, together with a certificate written at the foot of such copy that it is a true copy of such document or part thereof, as the case may be . . and such copies so certified shall be called certified copies. Under Section 77 such certified copies may be produced in proof of the contents of the public documents or parts of the public documents of which they purport to be copies.

34. It was argued on the strength of the above sections that a certified copy could nothave been given Tinder the Registration Act and would not be admissible in evidence under the Evidence Act as the document was not compulsorily registrable and was not registered in the proper book, i.e. book 4 but was registered in book No. 5 which contains no provision for entering copies of the contents of the document. Our attention was drawn to a judgment of the Judicial Committee in Gopal Das v. Sri Thakurji . In this case the Judicial Committee rejected the contention that a receipt for a sum of money given by an adopted son in acknowledgment of the settlement of a dispute between himself and his adoptive mother was a public document for the purpose of Section 74(2) of the Evidence Act because it was registered.

35. I hold on the facts of this case that the provisions of Section 65(a) had not been complied with and secondary evidence could not be allowed to go in under the provisions of Section 65(e).

36. In my view, the judgment of the Judicial Committee in Satindra Nath v. Jatindra Nath. 0043/1935 referred to by the learned trial Judge does not help the plaintiff. There a deed of gift was entered not in book I as prescribed by Section 51 of the Registration Act but in book No.4. The High Court had found that this was through a mistake made in good faith which had not injured any innocent person and in the circumstances of the case the Board did not hold that the error of the registering officer in entering the document in Book 4 instead of Book 1 should affect the validity of the registration. A similar case of a mistake came up before McNair, J. of this Court in Re; Girish Chandra Seal : AIR1936Cal212 . There an assignment by an insolvent of a residuary share in his father's estate was wrongly entered in book No. 4 instead of in book No. 1 as required by Section 51.

37. These cases, however, have no application where the genuineness of the document is challenged and the registering officer is not examined to show how or why he came to make the mistake of registering in book No. 5 when he should have registered the same in book 4. Moreover, it was for him to explain how having registered in book 5 he came to give a certified copy when a certified copy of a document covered by that book is not available at all.

38. Registration of a deed of adoption is not conclusive to prove the factum of adoption, which if challenged, must be established by oral testimony of persons who were present at the ceremony deposing to the effect that all the formalities including the giving and taking of the boy in a lawful manner had taken place. Where, as here, there are witnesses on either side on the question of performance of the ceremony of adoption the conduct of the parties after the date of the alleged adoption may tilt the scale one way or the other. The oral evidence of both Chiranjilal and Biswanath is to the effect that after coming back from Ghatwa Biswanath lived at 16, Mullick Street with Munia being treated in all respects as a son of Rampratap.

This, however, is not supported by any documentary evidence. On the other hand, there is evidence to show that Biswanath went on living with his father at 19, Amratala Street and continued to keep the title of Churiwalla which he could not have done if the adoption had in fact taken place. (After discussing the evidence His Lordship continued).

39-45. The conduct of Biswanath and Chiranjilal after the death of Munia is still more inconsistent with the case of adoption. (His Lordship considered oral and documentary evidence and proceeded). If the adoption was a fact and if there was a deed evidencing it to the knowledge of Chiranjilal and Biswanath as well as the people at Ghatwa, Chiranjilal would not have proceeded in the clandestine manner which is apparent from the evidence and documents in this case. On the evidence adduced and in view of all the circumstances and the chain of subsequent events I hold that no adoption ceremony had taken place at Ghatwa.

46. The learned trial Judge has held that although no ceremony of adoption was performed at Ghatwa as alleged by the plaintiff and his witnesses the deed had been executed by Munia and wrongly registered in book No. 5. I regret to find myself unable to come to the same conclusion. The execution of the document was sought to be proved by the oral testimony of Chiranjilal, Biswanath, Hardeo and Jagannath. They all said that immediately after the performance of the ceremony Munia brought out a stamped paper, had the document written out by Ganesh Narayan and executed the same herself and thereafter got it attested by some witnesses. Neither Chiranjilal nor Biswanath signed the document as witnesses but Hardeo and Jagannath were examined to prove the execution of the document. If the story as to the factum of adoption be rejected, as it has been done both by the learned trial Judge and myself, the testimony of Hardeo that the deed was written out immediately after the performance of the ceremony must also be rejected. Hardeo as has already been indicated is not a witness worthy of credit. It is therefore not possible to accept his testimony as to the execution of the document by Munia uttered in the same breath as the account given by him of the factum of adoption. I have already held that Jagannath's evidence is not reliable. If the evidence as to adoption be rejected, the story of the same being followed by the execution of the document must also fall to the ground unless there be solid reasons to hold the contrary.

47. That leaves us still with the question of the registration of the document. The only evidence on this point is that of Jagannath. There are so many factors against the testimony of Jagannath thai: the document was registered at Nawa on 21st October, 1950, that summing up the position I find myself unable to hold with the learned trial Judge that it was registered. (His Lordship further considered the evidence and continued). Chiranjilal's conduct in getting Biswanath admitted in two schools successively tinder the name and style of Biswanath Churiwalla, proclaiming himself as the father of Biswanath, the failure to set up the case of adoption or refer to the deed alleged to have been executed by Munia immediately after March, 5, 1956, the absence of protest against Dhapu's conduct in secreting the document and turning Biswanath out, Cniranjilals going to Ghatwa to keep a track on Dhapu's activities and his calling in the aid of Harchandrai in this connection, the statement made before the police by Biswanath on May 6, 1956, the non-production of the books maintained at the office of the Registrar at Nawa and the failure to summon the pleader and the registering officer as witnesses, all impel me to come to the conclusion that not only did Munia never take Biswanath in adoption but that she never executed the deed ascribed to her.

48. Once it is held that Munia never executed the document the question of the plaintiffs calling upon Dhapu to produce the original and tendering a certified copy of it under the provisions of Section 65 of the Evidence Act is ruled out. But even if I were to come to the conclusion that Munia had executed the deed of adoption I would still hold that the case had not been made out for adducing secondary evidence of it. Under Section 61(2) of the Registration Act upon the registration of the document it shall be returned to the person who presented the same for registration or to such other person (if any) as he has nominated in writing in that behalf on the receipt mentioned in Section 52. There is no evidence as to when if ever Munia obtained the document from the Registration Office at Nawa. But assuming that she took the document from the Registration Office there is no reliable evidence to show that Dhapu had obtained possession of it afterwards. (His Lordship referred to evidence on this point and proceeded). On the evidence adduced the learned trial Judge held that the document was not in the possession of the plaintiff but he did not record a finding as to whether Dhapu was in possession of it and concluded that it was enough for the plaintiff to prove that so far as he was concerned the document was lost. I find myself unable to hold that this is a case where the document can be held to have been lost. To record a finding that the document is lost it must be established that a thorough search had been made in places where it was likely to be found and of persons likely to have possession of the same. There is no evidence of any search and indeed the only reference to its whereabouts prior to the institution of the suit is the letter of Mr. Bagla to Mr. Bagaria solicitors for Dhapu that his client had suppressed it.

49. As regards issue I(c) it is undisputed that under the orthodox Hindu law the adoption of a daughter's son is not sanctioned except amongst Sudras. But as 'clear proof of usage will outweigh the written text of the law' it is open to any person setting up an adoption in deviation from the orthodox law to plead and prove the usage or custom on which he relies. The Hindu customs recognised by the Courts in India are (1) local, (2) class and (3) family customs.' (Mulla's Hindu Law, 12th edition, page 91). To quote the words of the same commentator 'A custom is a rule which in a particular family or a particular class or community or in a particular district has from long usage obtained the force of law. It must be ancient, certain and reasonable, and being in derogation of the general rules of law, must be construed strictly. It is further essential that it should be established to be so by clear and unambiguous evidence, for it is only by means of such evidence that the Courts can be assured of its existence and of tlie fact that it possesses the conditions of antiquity and certainty on which alone its legal title fro recognition depends....... A custom derives its force fromthe fact that it has, from long usage, obtained the force of law. It must be ancient; but it is not of the essence of this rule that its antiquity must in every case be carried back to a period beyond the memory of man. All that is necessary to prove is that the usage has been acted upon in practice for such a long period and with such invariability as to show that it has, by common consent, been submitted to as the established governing rule of a particular locality.'

50. According to Halsbury's laws of England, 3rd edition, Vol II p, 171: 'All customs of which the Courts take judicial notice must be clearly proved to exist--the onus of establishing them being upon the parties relying upon their existence'. The distinction between the English law and the Indian law in the matter of the length of the period of prevalence for establishing a custom was pointed out by the Judicial Committee in the case of Mt. Subhani v. Nawab where in the course of an elaborate judgment it was remarked (p. 31 of Ind App): (at p. 32 of AIR).

'It is undoubted that a custom observed in a particular district derives its force from the fact that it has, from long usage, obtained in that district the force of law. It must be ancient; but it is not of the essence of this rule that its antiquity must in every case be carried back to a period beyond the memory of man still less, that it is ancient in the English technical sense. It will depend upon the circumstances of each case what antiquity must be established before the custom can be accepted. What is necessary to be proved is that the usage has been acted upon in practice for such a long period and with such invariability as to show that it has, by common consent, been submitted to as the established governing rule of the particular district'.

In my view what was said of the custom of a district would also apply to the custom of a class of a family custom. It can hardly be expected that a custom can be proved by direct evidence of instances of long past. As was pointed out by the ludicial Committee in Rajendra Narain Bhanj v. Gangananda Singh 'After the existence of the custom for some years has been proved by direct evidence, it can only, as a rule, be shown to be immemorial by hearsay evidence, and it is for this reason that such evidence is allowable as an exception to the general rule'. A custom cannot be established by few instances of recent dates: K. Abbayya v. VenkataPapayya, ILR 29 Mad 24; Hashim All v. Abdul Rahman, ILR 28 All 698.

51-56. I now proceed to examine the pleadings and the evidence on the point of custom adduced in this case. (His Lordship considered these and proceeded).

57. It therefore appears that the only unimpeachable instance of the adoption of a daughter's son as testified to by the witnesses is that of Bhagirathlal Goenka's taking Mr. Bagla's son as his adopted son. The evidence of Hariprasad Nathani is hearsay and cannot be accepted when direct evidence was available about the adoption of his father by the latter's maternal grand-father. The case of Harimohan Jhunjhun-walla deposed to by Hariprasad Nathani is also one of hearsay. He professed to have knowledge of this adoption from his father-in-law because Hariprasad Nathani had become the brother of his father-in-law by adoption. There is no explanation as to why Hariprasad Nathani or somebody else of his family present at the adoption was not called. With regard to the judgment of Costello, J. the learned trial Judge ignored the instance in view of his finding that the adoption had not been proved. In Mt. Kesarbai v. Indarsingh the Judicial Committee approved of the High Court of Nagpur treating the case of Biswanath Singh v. Jugalkisore, 50 Ind App 179: (AIR 1923 PC 90) as corroborating the evidence of custom of adoption by a widow of the Raghubansi caste without her husband's authority in a case arising at Chindwara in Central Province as distinct from Oudh from where the caste originally came. According to Mulla's Hindu Law, 12th Edition, page 92, 'A judgment relating to the existence of a custom is admissible to corroborate the evidence adduced to prove such custom in another case'. This is based on the authority of Kesarbai's case . The learned author goes on to add: 'Where, however, a custom is repeatedly brought to the notice of the Courts, the Courts may hold that the custom was introduced into the law without the necessity of proof in each individual case.' This statement of law is taken front the judgment in Raja Venkata Mahipati Gangadhara Rama Rao v. Raja of Pittapur, 45 Ind App 148 at pp. 154-55: (AIR 1918 PC 81 at p. 83).

58. Mr. Mukherjee wanted to rely on the judgment of Costello, J. as also that in the case of Mt. Ballo. v. Ram Kishan, AIR 1924 All 49 as instances where a custom of the adoption of a daugher's son by Agarwalla Vaishyas had been upheld. It is to be noted that in the latter case the Allahabad High Court was dealing with a second appeal where both the Courts below had found that the adoption had in fact taken place and accepted the defendant's evidence as establishing the existence of Hie alleged custom. The penultimate paragraph of the judgment goes to show that the contention before the Allahabad High Court was that the evidence adduced about the custom was insufficient to establish the same. It appears that the defendants only relied on contracts of Wajib-ul-arzes relating to some thirteen villages in which a general custom to adopt a daughter's son or a sister's son was recited, but there wasno specific reference to Agarwalla Vaishyas in them. That evidence was not relied on by either of the Courts below but the lower Court had before it three judgments in one of which the custom was found to have been established. In the second of these cases the trial Court found that the custom had been proved but on appeal the High Court decided the case on another ground. In the third case the subordinate Judge of Sharanpur had found that the custom had been fully established by thirty-three witnesses who had given forty five instances. All these spoke of the general custom permitting adoption of a daughter's son prevailing in the Agarwalla Vaishyas and they were able to cite at least 34 instances out of which 20 had been accepted by the Courts below as being instances where adoption either of a daughter's son or a sister's son had taken place. Again, out of these twenty there were eleven instances of the adoption of a daughter's son. On this evidence the High Court of Allahabad held that there was sufficient evidence to establish the custom.

59. Mr. Deb, learned counsel for the respondents, argued on the authority of Kesarbai's case 71 Ind App 190 : (AIR 1945 PC 16) that if Mr. Mukherji had wanted to rely on these two judgments i.e., of Costello, J, and of the Allahabad High Court he should have tendered them in evidence in which case it would have been open to the defendants to get the records of the case produced to show the nature and quantum of evidence and scrutinise the same. In my view these judgments could have been tendered in evidence but by themselves they do not establish that the custom of adopting a daughter's son in the Vaishya Community has acquired such notoriety and been established in Courts of law so often as to be recognised as a part of the law of the land. The learned trial Judge remarked that the cases proved were insufficient in number to establish the community custom. In my view evidence on this point is so scanty that it is impossible to hold that custom mentioned in the plaint has been proved.

60. In the result the appeal must be dismissed with costs.

61. Certified for two Counsel.

Bose, C.J.

62. I agree.


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