Patna High Court
Gokhul Rai vs Mt. Janki Kuer And Anr. on 9 August, 1955
Equivalent citations: AIR1955PAT487, 1955(3)BLJR531, AIR 1955 PATNA 487
JUDGMENT Raj Kishore Prasad, J.
1. This appeal is by the plaintiff, whose suit for a declaration that he was the adopted son of one Posan Rai, and for recovery of possession of his properties, has been dismissed by Mr. Sachidanand, Subordinate Judge, 2nd Court, Muzaffarpur, by his judgment dated 26-2-47.
2. A short genealogical table in order to understand the relationship and the case of the parties may be set out below:--
PALAKDHARI __________________|_____________ | | Roshan Rai Raghunath Ra W : Janki Kuer (D.1) | | | | Gokul Rai Bilat Rai (Plff.) W: Radha Kuer (D.2) Posan Rai, whose widow is Janki Kuer defendant 1 had a son Bilat Rai who predeceased him, leaving behind his widow Radha Kuer, defendant 2. Plaintiffs case is this: He is the own nephew of Posan Rai and as, the latter had no son, he adopted the plaintiff as 'Kartaputra' by a registered document dated 26-4-40 and put him in possession of the properties mentioned in the plaint. Shortly afterwords in May, 1940, Posan Rai died, and the plaintiff performed his 'Shradh' ceremonies. Before the plaintiff could file a petition in the Land Registration Department, for mutation of his name, defendant 1 the widow of Posan Rai, at the instigation of plaintiff's enemies put in a petition for mutation of her own name in the Land Registration Department.
Plaintiff appeared before the Land Registration Court, and objected to the mutation of the name of defendant 1 in place of Posan Rai in respect of his properties on the ground that the plaintiff was the adopted son of Posan Rai, and as such he was entitled to his properties, hut his objections were disallowed on 9-12-40, and the defendant 1 was mutated in place of Posan Rai Thereafter the defendants, viz., Janki Kuer, defendant 1 widow of Posan Rai, and Radha Kuer, defendant 2 the daughter-in-law of Posan Rai, both dispossessed the plaintiff, and therefore, he was compelled to bring the suit, out of which the present appeal arises.
3. Defendants 1 and 2 constested the suit. Their defence was that Posan Rai was ill for a long time before his death, and during his last days he had lost all power of understanding, and accordingly he was sent to Pupri for treatment, and, if there taking advantage of his serious illness and loss of power of understanding, the plaintiff got any document executed by Posan Rai at Pupri, it cannot confer any right on plaintiff Defendants, therefore, denied plaintiff's adoption and the execution of the deed of adoption by Posan Rai.
4. The learned Subordinate Judge, in a well considered and reasoned decision, after considering the entire evidence on the record oral and documentary came to the conclusion that the story of adoption of the plaintiff was a myth, and "the deed of adoption may not have been executed by Posan Rai, and even if it was executed the plaintiff got it executed in the circumstances alleged by the defendant". He further found that the plaintiff's story of possession and dispossession was not true, and the story of possession of the defendants was true.
He, therefore, dismissed the plaintiff's suit and therefore, the plaintiff has preferred the present appeal.
5. Mr G.P. Das, appearing for plaintiff appellant, has contended that the finding of the learned Subordinate Judge that the plaintiff's adoption has mot been proved is vitiated clue to two errors of law, which he has committed, namely, (i) he considers ceremony necessary for a valid adoption or a 'Kartaputra' and (ii) he considers that there could be no such adoption by a person without his wife, if she is alive. He has further submitted that as there is a registered deed of adoption executed by Posan Rai, plaintiff's adoption should be accepted as proved, and his suit should be decreed.
6. In support of his contention that (i) no ceremony is necessary for a valid adoption of a 'Kartaputra' and (ii) a person can adopt in 'Kritrima' form without his wife, Mr. Das relies on Section 515, at page 610 of Mulla's Hindu Law, 11th edn. which says that the 'Kritrima' form of adoption is prevalent in Mithila and the adjoining districts, and it is recognised by the law. Either man or woman, can adopt in this form. No ceremonies are necessary tc the validity of a 'Kritrima' adoption, nor is a document necessary.
A 'Kritrima' son does not lose his rights of in heritanee in his natural family. In his adoptive family, however, he can only inherit to the person actually adopting him and to no one else. The word 'Kartaputra' indicates 'Kritrima' and not 'dattaka' adoption. He next relies on,-- 'Sabtiri Thakurain v. Mrs. F. A. Savi', AIR 1933 Pat 306 (A). At pp. 393, 394 and 395 Khaja Mohammad Noor and Dhavle, JJ. observed that in the Mithila School the doctrine of adoption in the 'Kritrima' form has it peculiarity. According to it the husband can adop in this form without any religious ceremonies and independently of the wife, and 'vice versa'; and the 'Kritrima' son adopted by the husband takes his property as heir to the exclusion of the wife. He then relies on -- 'Kanhaiya Lal Sahu v. Suga Kuer' AIR 1926 Pat 90 (B) in which Das, J. at p. 92, said regarding the system of 'Kartaputra' as follows: , "Under which (the system of 'Kartaputra') person on adoption did not lose his status in his natural family, though he acquired a status as the son of his adoptive father. No ceremonies or sacrifices are necessary to the validity of this particular form of adoption- AH that is necessary is the consent of the adoptee which involves the adoptee be ing an adult. As I have said, he does not lose the rights of inheritance in his natural family, and takes the inheritance of his adopted father, but not of his father's father, or other collateral relations, not of the wife of bis adoptive father, or her relation. ........... The rights of the adopted son would depend on the contract between him and his adoptive father."
He also relies on Section 177 of Hindu Law Principles and Precedents, by N.R. Raghavacharia 2nd edn. at p. 177. The learned author quote Mann, ix, 168-169. Who has said that "A son of the same caste able to discriminate between right and wrong and having filial affected when adopted, is called 'Kritrima' son".
The learned author then observes that no ceremonies or sacrifices are necessary for its validity, the only requisite being the consent of both the party This kind of adoption can be made by either a man or a woman, or jointly by both the husband and wife.
7. From the above authorities, it is clear the no ceremonies are necessary to the validity of (SIC) 'Kritrima' adoption. A person, therefore, can ado(SIC)
i)\ this form without any religious ceremonies (SIC) independently of his wife, and 'vice versa', the only (SIC) requisite being the consent of both'the parties. The (SIC) consent of the adoptee, when he is 'sui juris' is absolutely necessary for the validity of the adoption' but if he is a minor the adoption will be made if he has attained years of discretion and his parents consent to the adoption.
This kind of adoption can as such be made by either a man or woman, or jointly by both the husband and wife, but when it it made by a woman, it is made to herself, and not her husband, and no consent of the husband is at all necessary. By his adoption the adoptee becomes the son of the adopter and lie is not entitled to claim any relationship, for any right of succession to any one other than the adopter in the new family. The 'Kartaputra' inherits his'adoptive father's properties as his heir, if there be no natural son, to the exclusion of the wife and at the same time he does not lose his rights of inheritance in his natural family.
In such a case the only contract between the parties is as to sonship and the adopted son is, therefore, liable to be frustrated by an act of the adoptive father, of by the subsequent birth of a natural-born son. Where a natural-born son is in existence be is entitled to exclude every other kind of son from sharing with him in the estate of his father.
8. The above principles of Mithila law are well established. But the question is, has the learned Subordinate Judge decided the case on the impression that some religious ceremony was necessary and that the presence of the wife by the side of her husband was also necessary for the validity of this form of adoption? In my opinion this contention is not correct. The learned Subordinate Judge was considering ttie plaintiff's story of adoption, and, the evidence adduced on behalf of the plaintiff, to see if such an adoption had actually been made; and in considering this question he considered the material contradictions made by the witnesses of the plaintiff, and, therefore, the Court observed that these two things which were alleged to have been done had not actually been done.
The reason for considering this matter was that in the deed of adoption itself. it was mentioned as follows:--
"On account of there being no issue of my own and with a view to attain salvation and in consultation with my wife I thought it necessary and advisable to adopt a 'Kartaputra' and as prescribed by Hindu Sastra, I, the executant and my wife, having put on yellow cloth and sacred thread, have adopted Gokhul Rai, the claimant, entered in item No. 2 as my 'Kartaputra' by sitting in my angan' (inner courtyard) in presence of my family priest and respectable persons of the village..... Now no ceremony whatsoever is left to be performed in respect thereof".
The learned Subordinate Judge, therefore, considered if any ceremony was performed, and if Posan and his wife jointly adopted plaintiff as mentioned a the deed; and in doing so he proceeded to discuss the evidence which showed that the above ecitals were not correct, or that they could not be correct.
9. According to the plaintiff's case the actual adoption took place on the 3rd Baisakh 1347 fasli corresponding to 25-4-40, that is, a day before the actual execution of the deed of adoption. The learned Subordinate Judge, while giving his reasons for saying that the story of adoption is improbable, refers, to two or three facts, which according to him make the story of adoption, most improbable.
One such fact, which he considers, is that the statement in the deed of adoption that the adoption was made by Posan and his wife sitting together jointly in the courtyard is not correct, because, P. W. 4 in his deposition before the Land Registration Court, Ex. E/1, stated in his cross-examination that "the wife (defendant 1) and the daughter-in-law (defendant 2) were inside the house", and as such the recital in the deed that Posan and his wife jointly adopted plaintiff is cot hue. The next circumstance, to which the learned Subordinate Judge makes mention is that in the deed of adoption, Ex. 3, there is a specific mention that "now no ceremony whatever is left to be performed in respect thereof", which clearly shows that ceremonies were observed at the time of the actual adoption.
He refers to the evidence of P. Ws i and 3 to 5, who have all deposed that they were present at the time of adoption of the plaintiff. All have deposed that 'mantras' were then recited by one Mahabir Misra, who is now dead, and then Posan, and his wife, both gave to the plaintiff sacred thread mad betal nut saying that they had adopted him as 'Kartaputra'. The learned Subordinate Judge says that the adoption is alleged to have taken place on the 3rd Baisakh 1347 fasli which was Thursday, and which day, according to D. W. 4, was Chauth from morning to 2 A.M. next day.
He further says that Chauth is called Rikta, and if it falls on Thursday, it is called 'Mrituyoga', and no auspicious celebrations can take place on 'Rikta Tithi' itself, not to speak of 'Mrituyoga'. D. W- 4 asserts that no pandit can advise adoption on 'Rikta Titlii'. The learned Subordinate Judge then refers to the evidence of P. W. 3, who stated in the cross-examination that Mahabir Missir fixes auspicious dates for ceremonies. The learned Subordinate Judge is, therefore, right in saying that it is difficult to believe that Mahabir, who admittedly officiated as priest at the time of the adoption, would fix such an inauspicious date for such an auspicious ceremony of adoption.
In that connection only be considers the importance of 'Rikhta' day in order to show that on the evidence the adoption could not have been performed on the day alleged. It is, therefore, not correct in saying that the Court below considers ceremony or the presence of wife with the husband, essential for a valid adoption, and on that view he has decided the case. This contention of Mr. Das, dierefore must be overruled.
10. As regards the last contention, of Mr. Das that the deed of adoption being a registered document that adoption must be taken to be proved, we have to see if this alleged deed of adoption is a genuine document, and if really it was executed by Posan Rai, as it purports to be. In this connection the learned Subordinate Judge has very rightly made reference to the absence of the signature, or thumb impression of Posan on the first page of the deed of adoption, where the execution portion has been written.
The deed of adoption Ex. 3, purports to bear the signature of Posan in the pen of Ramanand Rai, P. W. 4, and is attested by Rampargas Singh, Dhanukdhari Rfii, Mahabir Misra and Ramyad Singh, and Ramanand Rai, P. W. 4 is also alleged to have identified Posan Rai before the Sub Registrar. (His Lordship considered the evidence regarding the point and concluded:) In the absence of the thumb mark of Posan on the document, and in the absence of any document bearing admitted thumb mark of Posan, it is very difficult to say if it was Posan, who really executed the document and admitted registration before the Sub Registrar
11. Section 52 (1) (a), Indian Registration Act, 1908, provides that the day, bour and place of presentation, and the signature of every person presenting a document for registration shall be endorsed on every such document at the time of presenting. it. Section 58(1) of the same Act mentions the particulars to be endorsed on documents admitted to registration.
It provides that on every document admitted to registration, other than a copy of a decree or order, or a copy sent to a registering officer under Section 89, there shall be endorsed from time to time certain particulars, and one such particular which has to be endorsed is given in sub-clause (a) of Clause (1) of Section 58 of the Act, which says that the signature and addition of every person admitting the execution of the document, and if such execution has been admitted by the representative, assign, or agent of any person, the signature and addition of such representative, assign or agent, shall be endorsed on the document admitted to registration.
Rule 45 (g) of the Registration Rules, called the Bihar and Orissa Registration Rules, 191.8, provides that a literate executing party shall be required to use the same language in signing the endorsements as he has used in signing the instrument-Rule 4T of the same Rules provides that when a person, who cannot write signs his name by means of a mark or by touching the pen, his name shall be recorded at length and the writer of the name shall also sign and date his own signature in attestation that the mark was affixed or the pen touched in his presence.
Rule 45 (1) of the same (amended) Rules provides that the endorsements required by Sections 52 and 58 shall be written in Forms Nos. II and III in Appendix TV, respectively. Form No. II of Appendix IV, of the Rules provides that the signature of presentant, above the signature of Registering Officer, and below his endorsement under Section 52, has to be obtained. Form No. III of Appendix IV, provides that thumb impression of the executant admitting the execution has to be taken below the endorsement under Section 58, Registration Act.
From the provisions of law referred to above, it will appear that in the case of a literate person his signature as well as his thumb impression both have to be obtained on the document sought to be registered by the Registering Officer, and therefore, the contention of Mr. Das that the signature of the presentant is not necessary but only his thumb mark is necessary and taken, is not borne out by the provisions of law relating to registration of documents mentioned above.
12. If really Posan Rai was not in a position to sign his name although, he was literate, it was expected that the attention of the 'Registrar would have been drawn either by a petition, or orally, to the fact that Posan, although literate, was not in a position to sign his name, because of his sore in the thumb of his right hand. There is no mention of any such fact on the document itself by the Sub Registrar. Therefore, the omission of the signature of Posan Rai on the document either at the time of the execution of the document or at the time of the registration of the document makes the document very suspicious.
Regarding the explanation of the plaintiff that Posan had sore in the thumb of the right hand and therefore he could net sign, different plaintiff's witnesses have given different versions. P. W. 3 has stated that the sore was on the inner side of the thumb near the nail. P. W. 4 has stated that the sore, was on the back of the thumb on the first joint, P. W. 6, the plaintiff, has stated that the sore was on the inner side of the middle of the thumb. In view of such conflicting version, of the position of the sore, it is difficult to believe the plaintiff's story that Posan had a sore in the thumb on account of which he could not sign in his own pen.
There is no dispute that Posan was ill before his death for sometime. The plaintiff says that he had nothing but a sore in his thumb, whereas the defendants say that he was ill for about six months and for about one month before his death he had lost his power of understanding and he used to talk incoherently. Unfortunately the doctor who was consulted at Pupri has not been examined. Rut the fact remains that Posan died only 16 or 18 days after the alleged adoption as admitted by P. W. 1 in his cross-examination.
At Pupri where admittedly Posan was sent for treatment he was alone and he was sent there with one Rambrich who was not examined by the defendants, because according to D W. 1, that is, defendant 1 Hambrich was colluding with plairitiff. The plaintiff's contention that because the defendants have admitted in para. 6 of the written statement that Posan was sent to Pupri for treatment, and that he lived at Pupri for a few days, and then came back, makes the story of execution of the document in dispute at Pupri more probable, cannot be acceptr ed for the reasons given above, namely, that there is no reliable evidence on which it can be said that Posap executed the document as set up by the plaintiff.
If it was really executed at Pupri it was expected that the attestation of the doctor who had beery consulted or of some person residing in Pupri would be obtained on the document, but no such thing is there.
13. It was suggested in argument that there is a note on the document itself that the executant himself knows how to write, but on account of his wound in his hand he could not write. It was said that this note was made by the Sub-Registrar himself when his attention was drawn to the sore on. the thumb of Posan. But on referring to the original document it will be found that there is no such note written by the Sub-Registrar himself. Ramanand Rai, P. W. 4, has himself written this note on the first page of the document after signing the execution portion for Posan. Therefore, no importance can be attached to the note written by Ramanand Rai.
On the evidence there can be no doubt that Ramanand Rai is the person who has helped the plaintiff greatly in bringing this document into existence. It appears that all the four attesting witnesses belong to Bhagapure where the plaintiff resided and by bringing them into his collusion the plaintiff with the help of Ramanand Rai got up this deed of adoption.
14. Another important circumstance which has to be taken into consideration along with other facts mentioned above is that P. W. 1 admitted in his cross-examination that Posan died leaving behind three daughters and daughters' sons and at the time of adoption Posan had these daughters" sons. It looks very curious as to why Posan would execute this deed of adoption in favour of the plaintiff giving him all his properties giving only maintenance to his widow and daughter-in-law and giving nothing to his daughters and daughters' sons.
This itself shows that the deed of adoption is most unnatural and could not have been executed knowingly by Posan to the great disadvantage of his daughters & daughters' sons as also to his widow and widowed daughter-in-law. Posan having died in May 1940, his widow was entitled to the properties of Posan after his death But even then she is givem only a maintenance, instead, of allowing her to have her legal rights in the properties of her deceased husband, Ramanand Rai, P. W. 4, has taken a prominent part in getting this document executed, because he not only signs for Posan Rai, but also identifies him before the Sub-Registrar, and he gave evidence for the plaintiff here as well as in the Land Registration Court.
It was suggested to him that he and the plaintiff were 'Sarhoos' but this fact was denied by him. Therefore, taking all the facts mentioned above into consideration it cannot be said that the plaintiff has been able to establish that the deed of adoption Ex. 3, was really executed by Posan, and that the plaintiff was really adopted by Posan, and the deed of adoption was executed in token of his adoption.
15. The question of possession as the learned Subordinate Judge has himself observed has no independent value in the case. But he says that that it has at best some bearing on the question of adoption. I, however, think that even if It be assumed that the plaintiff got into possession of the properties of Posan after his death, that will not in the least debar the defendants from regaining possession, when the plaintiff has failed to prove that he was adopted by Posan.
The plaintiff taking advantage of the helplessness of the two widows, viz., defendants 1 and 2, and in order to defeat their claim and grab the property of Posan has brought into existence Ex. 3 by manufacturing it and has set up the story of his adoption. There is no reliable evidence on the record to prove that really Posan executed the deed of adoption and really it was Posan who admitted the execution of the document before the Sub-Registrar,
16. I, therefore, hold in agreement with the learned Subordinate Judge that the plaintiff has failed to prove that he was adapted by Posan, or that Posan executed the deed of adoption Ex. 3, and that the story of plaintiff's adoption and the execution of the deed of adoption by him is false.
17. In the result, the appeal fails and is dismissed with, costs:
Rai, J.
18. I agree.