Patna High Court
Smt. Janki Devi And Ors. vs Fani Nandan Tewari And Ors. on 28 August, 1987
Equivalent citations: AIR1988PAT251, AIR 1988 PATNA 251, (1988) BLJ 328, (1988) PAT LJR 296, (1988) 2 CURCC 226, 1988 BLT (REP) 71
Author: S.B. Sinha
Bench: S.B. Sinha
JUDGMENT S.B. Sinha, J.
1. This is an appeal against the judgment and decree dated 31st August, 1976 passed by Shri M.K. Verma, 7th Additional Subordinate Judge, Ranchi in Partition Suit No. 33/82 of 1970-75 whereby and whereunder he dismissed the plaintiffs-appellants' suit.
2. The facts of this case lie in a very narrow compass.
3. The plaintiffs filed the aforementioned suit for partition with respect to the properties mentioned in Schedule-B of the plaint. Although the other properties have been described in Schedules C and D thereof but before the learned court below the plaintiffs did not pray for any relief in respect thereto. For the purpose of appreciating the facts involved in this case it is necessary to see the genealogical table relating to the parties which is said to be hereunder : --
Deoki Nandan Tiwari
_____________________________________|__________
| | |
Janki Pd. Haribhajan Kashi Pd. Mata Pd.
Tiwari Tiwari Tiwari Tiwari
____|________________________ |______ |
| | | | __ |
Triloki Pd. Bidesh Pd. Nand Kumar || | |
Tiwari ||Ram Saran |
|| Tiwari |
|| ___________________________________|______
|| | | |
||Nageshwar Manu Dhan Kuar.
||Pd. Tiwari
||__________________________________________
| | | |
| Bhairab Satya Narayan Puran
| Narayan Tiwari
| Tiwari |
| |
| |
| Banmali Tiwari
| (adopted son)
__________________________________|_________________________________________ | | | | | | Lakshmi Rameshwar Gulab Badri Inder Mohan Devi Narain @ Tiwari Narain Narain Narian Brahmchari | Tiwari Tiwari Tiwari | | | | Nand Kumari Ambika Devi Devi wife living
4. The plaintiffs case as made out in the plaint is that the aforementioned properties were the joint properties of Ram Sharan Tiwari, Kashi Prasad Tiwari and Mata Prasad Tiwari having 1/3rd share of each. Kashi Pd. Tiwari sold his share to one Satya Narain Tiwari. Banmali Tiwari, ex-plaintiff, claimed himself to be the adopted son of Satya Narain Tiwari. The only question arises for consideration in this appeal and has been rightly pressed by the learned counsel for both the parties is as to whether the aforementioned Banmali Tiwari "was the adopted son of Satya Narain Tiwari or not. For the purpose of proving adoption it has been pleaded that the natural father of Banmali Tiwari died and thereafter he was adopted by Satya Narain Tiwari and had all along been treated as such. The plaintiffs have filed several documents to show that the said Banmali Tiwari was described as son of Satya Narain Tiwari. The plaintiffs have also tried to prove by adducing evidence that he had been ail along treated as son of the aforementioned Satya Narain Tiwari. It is alleged that the adoptive mother and father of Banmali Tiwari died in the year 1956 and 1959 respectively.
5. The aforementioned Banmali Tiwari, being thus the heir of Satya Narain Tiwari, claimed himself to have become entitled to 2/3rd share in the aforementioned joint family property filed the aforementioned suit for partition in respect of the property described in Schedule-B of the plaint. In the aforementioned suit the defendants-respondents appeared and filed their written statements claiming, inter alia, the plaintiff has no cause of action for the suit and in the garb of simple suit for partition, the suit was filed by him really for declaration of his title. It was further disputed that the said Banmali Tiwari was the adopted son of Satya Narain Tiwari. The relationship between the parties as given in the genealogical table was also disputed. It was further stated that the properties described in Schedule-B of the plaint was owned by Satya Narain Tiwar and Nageshwar Pd. Tiwari. the father and husband of defendants 1 and 2 and the said property was the subject matter of the partition which was done by a registered deed of partition executed in or about September, 1914 as a result whereof the other co-sharer became separate. It is further alleged in the written statement that the names of Satya Narain Tiwari and Nageshwar Pd. Tiwari were recorded in the survey settlement of records of right and after the death of Satya Narain Tiwari the defendants became the sole and exclusive owners thereof. It was further alleged that the said Banmali Tiwari having no concern with the suit property was never in possession thereof. It is alleged that the said Banmali Tiwari being an orphan was brought by late Satya Narain Tiwari from Kanke Mental Hospital where his mother died in or about in the year 1926-27 leaving him as a small child. Satya Narain Tiwari out of compassion brought him up and imparted education to him but in fact, he was never adopted as a son. It is further asserted that in the year 1945 Shri Satya Narain Tiwari executed a will dated 11-4-1945 in which the aforementioned Banmali Tiwari was losely described as "Balposh" but the said will later on cancelled by a fresh will dated 6-11-54 in which the wife of the aforementioned Satya Narain Tiwari and other were beneficiaries. Although the learned court below did not frame a separate issue with regard to the legal or valid adoption of Banmali Tiwari but in view of the fact that both parties have had evidence on the aforementioned issue and are not prejudiced in any by non-framing of specific issue in that regard the learned counsel for the parties have addressed me at great length on that issue.
6. From the judgment of the learned court below it further appears that before it also the main contention advanced on behalf of the parties was with regard to the said issue. In the facts and circumstances of the case, in my opinion, the only question which falls for determination in this appeal is as to whether Banmali Tiwari was the adopted son of Satya Narain Tiwari.
7. In view of the points involved in this case, in my opinion, it is not necessary to consider the oral evidence adduced in this case in details.
8. Mr. A.N. Deo learned counsel appearing on behalf of the appellants submitted that there is overwhelming evidence on record to show that at all materials times. Satya Narain Tiwari had all along treated Banmali Tiwari as his son. The learned counsel, therefore, proceeds to submit that in view of the fact that adoption took place long back and further in view of the fact that hardly there is any direct evidence on that question, a presumption will arise that Banmali Tiwari was the adopted son of Satya Narayan Tiwari and in that view of the matter he inherited all the properties to Banmali Tiwari.
9. Upon analysing the evidences on record it becomes evidence and Mr. Deo, when questioned, conceded that in view of the evidences of P.W, 1, P.W. 9, P.W. 10, and P.W. 11 the following facts emerge : --
(a) Natural father of Banmali Tiwari died a long back.
(b) In or about 1926 the alleged giving or taking ceremony of Banmali Tiwari took place at Kanke Mental Hospital where at the relevant time the natural mother of Banmali Tiwari was admitted.
(c) The natural mother of Banmali Tiwari expired in the Kanke Mental Hospital itself.
(d) Long thereafter a purported dutta homan ceremony was performed in which the maternal uncle of Banmali was merely present.
10. There is absolutely no doubt that in law, if allegedly an adoption of child had taken place long long back and there is circumstantial evidence to show that the said person alleged to be adopted was treated as his son in that event the factum of a valid and lawful adoption would be presumed The law is so well settled that it is not necessary to refer any cited case at this stage. However, in this connection reference may be made to a decision in the case of Durga Prasad v. Subedar Singh AIR 1978 All 472. The learned counsel for both the parties, however, strongly relied upon the commentary of Mulla Hindu Law and brought my attention to various sections thereof.
10A. It is now well settled that the objects of adoption are two folds; the first being religious and second being secular. It is also well settled in view of the various decisions of the Privy Council and the Supreme Court that validity of adoption is to be determined by spiritual rather than temporal considerations and devolution of property is only of secondary importance. Reference in this connection be made to the decisions in the cases of Sitaram v. Harihar (1911) ILR 35 Bom 169, Bal Gangadhar Tilak v. Shrinivas (1915)42 Ind App 135 : AIR 1915 PC 7 Lal Hukum Tej Pratap Singh v. Collector of Etah AIR 1953 All 766 and Chandrashekhar v. Kulandavelu AIR 1963 SC 185 and 193. From Section 448 of Mulla's Hindu Law, it would appear that the requirements of valid adoption are as follows :
1. The person adopting is lawfully capable of taking in adoption (SS 449-473);
2. the person giving in adoption is lawfully capable of giving in adoption (SS 747-479);
3. the person adopted is lawfully capable of being taken in adoption (SS 480-487);
4. the adoption is completed by an actual giving and taking ($ 489); and
5. the ceremony called datta homan (oblation to fire has been performed. It is, however, doubtful whether the dutta homan ceremony is essential in all cases to the validity of adoption ($490);
It is also well known that in absence of a father, mother may also give a son in adoption, A mother has no right to give her son in adoption during the lifetime of the father unless he becomes incapable of giving consent.
11. However, one of the essential ingredient of giving in adoption of a child is that the person giving in adoption is not only lawfully capable of giving in adoption but must be of sound mind to give his son therefor. This is so in view of the fact that when Hindu gives a boy in adoption hisact is in the nature of a sacred gift voluntarily made. Reference in this connection may be made to a decision in the case of Sitaram v. Harihar, (1911) ILR 35 Bom 169, 179 and 180. Reference in this connection may also be made to Section 491 of the Mulla's Hindu Law which reads as follows :
"Every valid adoption implies the free consent to the adoption of the person giving and the person receiving in adoption, and also, it seems, of the person adopted, if he is a major at the date of adoption. ' Where the consent to an adoption is obtained by misrepresentation, coercion, fraud, undue influence, or mistake the consent is not free, and the adoption is voidable at the option of the party whose consent was so obtained. But it may be ratified by such party, provided the ratification does not prejudice the rights of other persons."
12. The very fact that mother of Barmali Tiwari (the original plaintiff) was in mental hospital is itself a proof of the fact that she was incapable of performing the ceremony of giving her son in adoption. Mr. Deo tried to argue with regard to the evidence of some P. Ws. that Sukumari Debi mother of Banmali Tiwari was admitted in the mental hospital as she wassuffering from hysteria vide evidence of P.W. 11, Kunj Behari Tiwari. This statement of Kunj Behari Tiwari cannot be believed at all. A patient of hysteria is not required to be treated in a mental hospital. This appears to be against common sense. Further it cannot be believed that a pious ceremony of the nature of giving and taking of a boy in adoption and Yagnya therefore, would be performed or would be allowed to be performed at Kanke Mental Hospital.
13. The evidence of P.W. 11, on the face of it, appears to have been made by way of an after thought and does not inspire confidence.
14. The plaintiffs have not brought on record any document to show by calling for records from Kanke Mental Hospital, which they could do as to what was the nature of illness from which the mother of Banmali Tiwari was suffering, what was her mental condition at the time when Banmali Tiwari was allegedly given in adoption and other relevant facts. On the other hand the very fact that mother of Banmali Tiwari was in Kanke Mental Hospital as has been admitted by the witnesses examined on behalf of the plaintiffs, further and as she, in fact, died there in the year 1927 is clearly demonstrative of the facts that she was insane and as such was not capable of giving her son in adoption.
Further, if Yagnya was already performed in the Hospital as alleged by P.W. 1, there was absolutely no necessity as to why a dutta homan ceremony would be perforemed later on.
15. Mr. A. N. Deo, however, submitted that there was nothing to show (on) the record that mother of Banmali Tiwari was permanently insane and he in this connection cited to a decision in the case of Pronab Kumar Ghosh v. Krishna Ghosh (AIR 1975 Cal 109). This decision, in my opinion, hasno application on the facts and circumstances of the case because this decision arose out of a matrimonial case. In view of the peculiar facts and circumstances of the case, in my opinion, the doctrine of things speaks for itself should be applied also in this case.
16. Further in view of the evidence adduced by the witnesses it would appear the dutta homan ceremony was performed later on. It is well settled that dutta homan ceremony is the sacrifice of the burning of clarified butter which is offered as a sacrifice by fire by way of religious propitiation or oblation may be performed by the parties who give and receive the boy in adoption or performance thereof may be delegated by them to others.
17. As noticed hereinbefore Dutta homan ceremony is one of the essential ingredients for a valid adoption, Mr. A. N. Deo may be right when he contended that the aforemention ed ceremony may be performed at any time after of the physical act of giving or receiving it and may also be performed even after the death of the adoptive father and natural fatherof the boy. But therecannot be any doubt that such ceremony as noticec hereinbefore has to be performed either by the parties who give and receive boy in adoption or by a person when the said power is delegated to him by the persons capable of giving a boy adoption. The only evidence on the record appears to be that maternal uncle of Banmali Tiwari was present at the time when this dutta homan ceremony was performed. There is no evidence on the record to show that either the maternal uncle of Banmali Tiwari performed the dutta homan ceremony or was delegated with the power to perform the same by the mother of Banmali Tiwari.
18. In that view of the matter it must be held that no valid dutta homan ceremony took place. In the case of Kashinath Rai v. Mahadeo Rao, AIR 1977 Pat 199 it has been held as follows :
"The giving and taking ceremony is essential to the validity of an adoption. It is an operative part of ceremony. The execution of a deed in connection with giving and taking ceremony can be treated as a substitute for giving and taking ceremony. The giving and taking ceremony is compulsory, both for the twice born classes and Sudras. In the giving and taking ceremony, the presence of the natural parents, adoptive parents, and the child is necessary. The only difference between the Sudras and the twice born classes is that the twice born classes also perform datta homan ceremony in particular, apart from the giving and taking ceremony."
As evidently the parties are brahmins and i.e. belong to twice-born classes, dutta homan ceremony was essential to be performed.
19. In view of the aforementioned findings of mine it is evident that there was no valid adoption of Banmali Tiwari by Satya Narain Tiwari. In this connection reference may also be made to Ext. 13 wherefrom it appears that the District Magistrate certified that Satya Narain Tiwari took Banmali Tiwari a orphan for the purpose of bringing him up. It is also just possible that Satya Narain Tiwari had all along been treating Banmali Tiwari just like his son because of his being a man of benevolence and good nature but the same will not, in my opinion, amount to as valid adoption in law.
20. In view of the fact that from the evidences led by the plaintiffs themselves the presumption of a valid adoption has been rebutted, I do not think it necessary to discuss the evidence of the witnesses examined on behalf of the defendants. It is, therefore, held that Banmali Tiwari was not adopted by Satya Narain Tiwari and in that view of the matter I have no option but to hold that Banmali Tiwari did not inherit the property of Satya Narain Tiwari.
21. In the result, this appeal is dismissed. However, in the facts and circumstances of the case, there will be no order as to costs.