Calcutta High Court
Nanda Krishna Pal Chowdhury vs Bhupendra Mohan Pal Chowdhury And Ors. on 1 January, 1800
Equivalent citations: AIR1966CAL181, 70CWN114
JUDGMENT Bijayesh Mukherji, J.
1. This is somewhat of a sad litigation by an adopted son, Nanda Krishna Pal Chowdhury, now aged 54, seeking a spate of reliefs, more than 34 years after his adoption, principally against his adopted parents, Bhupendra Mohan Pal Chowdhury, aged 90 and Sutapa Sundari Pal Chowdhury, aged 71. What makes the litigation sadder still is that Nanda Krishna was no stranger to the adoptive family where he was transplanted from his own, by virtue of adoption. Indeed, he was a near and dear one to Sutapa, his natural mother Suniti and his adoptive mother Sutapa, daughters of Rajah Janakinath Roy, renowned for his name and fame, being necessarily two sisters. In sum, Sutapa, the aunt of Nanda Krishna before adoption, became his mother after adoption. It is, therefore, a litigation which is not pleasant to be conducted or tried, as has been the feeling of the Bar and the Bench alike at and during the trial. But when it is there, the duty, howsoever unpleasant, has to be performed. And, if I may say so, the Bar has done its part admirably well without being infected by the slightest trace of rancour rampant amongst the parties and so natural too in all circumstances here. I now proceed to do mine as best as I can.
2. The facts Nanda Krishna comes to Court with, lend themselves to a short treatment, even though the plaint runs into a tome with, amongst others, averments consisting of 24 paragraphs, 14 reliefs and a concise statement, 3 pages long, demonstrating thereby that it is anything but concise. Son of a Deputy Magistrate of those days, Radhikalal they--that indeed is the name of Suniti's husband--and himself bearing the name of Nanda Bhusan Dey, the plaintiff was adopted by his uncle and aunt, Bhupendra and Sutapa, on June 27, 19128, with a new name, Nanda Krishna Pal Choudhury, with all due ceremony and with all conceivable precautions, so that he might not be left high-and-dry in future. That is evident from the two registered Bengali deeds, plain copies of which form part of annexures to the plaint: vide annex ares A and B wrongly recorded as exhibits A and B. Executed on one and the same day, namely, on June 27, 1928, with a load of 21 witnesses, including the writer, for each, one is by Radhikalal and Suniti making a gift of their sou, Nanda Bhusan, to Bhupendra and Sutapa. This document describes itself to be putra dan patra: a deed of gift of the son. The other is by Bhupendra and Sutapa in favour of Radhikalal ana Sumiti accepting their son. Nanda Bhusan, given in adoption. This document describes itself to be dattaka putra grahan patra the literal translation of which is--a deed of acceptance of the son given in adoption. By this deed, the adoptive parents agree, to quote only the material part therefrom: from this day, we will bring up the aforesaid son (plaintiff) as our sou born of our loins and teach him good manners give him education and perform the rites of Chudu (first tonsure) ceremony and marriage etc., keep him as our own son, born of our loins, permanently in our family and estate and in the enjoyment and possession of properties and he shall become heir and proprietor of all movable and immovable properties ete, left by us. In no circumstances, at no point of time and never, we shall be competent to renounce the aforesaid adopted son or to deprive him of the rights of enjoyment and inheritance in respect of the properties cite." : vide the official translation at page 2 of the brief of documents, Ext. A. The other deed, putra dan patra, says as much save that Radhikalal and Suniti, executants as they are, enjoin Bhupendra and Sutapa to keep to the terms just set out--terms which Bhupendra and Sutapa own in their own deed: dattaka putra grahan patra--vide the official translation at page 6 of the admitted brief of documents, Ext. A.
3. Adopted so, Nanda Krishna--no more he was Nanda Bhusan--began to thrive in his new paternal home---the home of Bhupendra and Sutapa at 12 Biswambluir Mullick Lane, Calcutta. Aged 16 or thereabouts, he had sat for the Matriculation examination at or about the time he was given in adoption. In strict observance of the terms of adoption, Bhupendra gave him further education, got him married and nurtured him, his wife and their children too consisting of 3 sons and 2 daughters.
4. Going by the plaint, it appears that the domestic life at 12 Biswambhar Mullick Lane ran smoothly enough, barring perhaps a periodic small rub here or a small rub there (which the plaint rightly ignores), for some 34 years when on February 1, 1962, both Bhupendra and Sutapa left their own home for 102 Sovabazar Street, "at the instigation of, and in collusion with" Butta Krishna Roy and "other designing persons." Such is the averment in paragraph 9 of the plaint which describes 102 Sovabazar Streat as "the residential house of" Butto Krishna Roy and Menoka Roy.
5. A little digression is called for, if only to know clearly who is who in and about this litigation. Butta Krishna Roy is the grandson of Raja Janakinath Roy. Butta Krishna's father, Kumar Narendra, now dead, was, therefore, a brother of Suniti, Nanda Krishna's natural mother, also dead, and of Sutapa too, his adoptive mother. Jiban Krishna, since deceased, was a brother of Butta Krishna. Menoka is Jiban Krishna's wife. 102 Sovabazar Street is really the home of the Roys, the descendants of Raja Janakinath Roy. Bhupendra, Sutapa, Butta Krishna and Menoka are defendants 1 to 4 respectively. With a view to remembering so many names and in proper order--all have not been named yet--it perhaps assists one's convenience to have a mnemonic table as set out below:
Raja Janakinath Roy (deceased) _______________________________________|__________________________________________ | | | | | Kumar Jogendra Kumar Narendra Kumar Ramendra Suniti Sutapa (deceased). (deceased) (deceased) defendant no. 2 | | =husband : =husband:
| | Radhikalal Dey Bhupendra Mohan
| | (deceased). Pal Chowdhury,
|_________________ | | defendant no. 1
| | | | ___________________ |____________ |
Radhanath Kanailal Balaji | | | | |
(deceased) Krishna | Benoy Nanda Indu |
| Bhushan Bhushan |
___________________|_____________ After adoption |
| | | Nanda Krishna Pal Nanda Krishna
Jiben Krishna Butta Binapani Chowdhury Plaintiff Pal Chowdhury.
(deceased) Krishna Plaintiff.
=wife. Menokam defendant
Roy, defendant no. 4 no. 3
Barring Binapani, the daughter of Kumar Narendra, (marked with an asterisk), the above genealogical table is just the table traversed in the first paragraph of the written statement of Bhupendra and Sutapa, defendants 1 and 2. What is more, Nanda Krishna, in the course of his evidence, admits the table so set out to be correct (qq. 16, 1-6, 8-19, 75-76, 89-91 etc.). That Binapani is the daughter of Kumar Narendra is not in the realm of controversy either. Only her name does not appear in the table Bhupendra and Sutapa incorporate in their written statement. What they have not done 1 do in the table above, because her name appears again and again in the evidence I have heard.
6. To return to the allegations in the plaint, Bhupendra and Sutapa not only removed themselves from 12 Biswambhar Mullick Lane, but also removed the moveables including "all the gold ornaments, jewellaries" etc. valued atone lakh of rupees. So they did on February 1, 1962, "and on various dates thereafter" aided and abetted by Butto Krishna Roy with whom they (Bhupendra and Sutapa) were "in collusion and conspiracy". The motive of doing so was to deprive Nanda Krishna of "his lawful right of use, enjoyment, possession and inheritance thereof." Not that Nanda Krishna stood by as they wore removing the moveables. He gave a "strong and vehement opposition" which however could not prevail. This sort of wholesale removal was effected "forcibly" and "in 7 or 8 steel trunks.' [See paragraph 10 of the plaint.] Annexure C ibid, consisting of 7 parts lists the detail of the movables.
7. Butta Krishna and Menoka, aware though they are fully of Nanda Krishna's rights under the terms of adoption, have been colluding with Bhupendra and Sutapa and thereby withholding the movables from him (paragraph 13 ibid.). Bhupendra and Sutapa again, have been misappropriating Rs. 700 a month which the portions of 12 Biswambhar Mullick Lane let out to tenants, dividends from shares etc, yield; whereas Nanda Krishna so long maintained by them has been left to fend for himself since February 1, 1962. For that maintenance has been claimed at Rs. 100 a month. [See paragraph 15; wrongly typed as 14, and paragraphs 16-18 ibid.]
8. Worst of all, Bhupendra and Sutapa have been trying to dispose of all the moveables and even the house itself at 12 Biswambhar Mullick Lane (paragraph 20 ibid.) Hence this suit, raised on 21-12-62, praying for ever so many relicts such as (i) a decree for Rs. 4,400 for past maintenance for 11 months from February to December 1962 at the rate of Rs. 400 a month, (ii) further damages pro rata till the disposal of the suit, (iii) a decree for permanent right of enjoyment of 12 Biswambhar Mullick Lane by realizing rents thereof and by residence therein, (iv) a decree for maintenance etc. The reliefs just listed are sought against Bhupendra and Sutapa. Against Bhupendra alone is sought an injunction permanently restraining him from disposing of 12 Biswambhar Mullick Lane in any manner whatever: [prayer 7]. And against all the four--Bhupendra, Sutapa, Butto Krishna and Menoka--are sought reliefs the more important of which are:
(a) delivery of the movables in specie or compensation for Rs. 1,00,000, and
(b) a permanent injunction restraining them from disposing of them in any manner whatever.
9. Bhupendra and Sutapa resist the suit by a joint written statement. They deny that Nanda Krishna can "claim a position higher than that of a natural-born son." They admit, however, they left 12 Biswambhar Mullick Lane, not on February 1, 1962, but on the day previous (January 31), because of ill-treatment by Nanda Krishna and the members of his family, which had reached its climax at 2 o'clock on the night of January 31, when two intruders (one of whom was recognized as Nanda Krishna's son, Shamu,) broke into their bedroom and gagged and assaulted them. Other allegations, including the ones on collusion, conspiracy and the like with Butto Krishna, are denied.
10. Butto Krishna and Menoka by a separate joint written statement deny the allegations Nanda Krishna makes against them in me plaint. They are "in no way interested", they plead, in the moveables in controversy, which they were not in possession of ever. Shamu's act coupled with the acts and conduct of Nanda Krishna and others of his family made Bhupendra and Sutapa leave 12 Biswambhar Mullick Lane on January 31, 1962, for 118 Lower Circular Road which, as evidence reveals, is the matrimonial home of Binapani who knows Bhupendra and Sutapa as her parents, "practically", "not legally", adopted as she was at the age of 1 or 2 by them. [See q. 21 to Balai Krishna Roy, a non-practising barrister, who is a witness for Bhupendra and Sutapa and also qq. 77-79 to Bhupendra. For Binapani and Balai Krishna, see the genealogical table in paragraph 5 ante.]
11. Six issues were recorded, when the suit was before A. N. Ray J. Released by him, the suit comes to trial before me. Certain verbal amendments are suggested at the Bar to the issues already cast. And Mr. Sen appearing for Butta Krishna and Menoka, defendants 3 and 4, desires me to frame one more issue (which I do) on the allegations touching his clients, as set out in paragraphs 9, 10 and 18 of the plaint. In the result, the issues that emerge are:
1. Have the rights of the defendants 1 and 2 in respect of their properties been curtailed or limited in any manner, as alleged? If so, to what extent?
2. Has the plaintiff all or any of the rights claimed by him in respect of the properties of the aforesaid two defendants or either of them?
3. Have the defendants 1 and 2 wrongfully detained any goods, as alleged?
4. Has the plaintiff any right to remain in the place where he is staying?
5. Have the defendants 1 and 2 or either of them been ill-treated, as alleged?
6. To what relief, if any, is the plaintiff entitled?
7. (New). Are the allegations contained in paragraphs 9, 10 and 13 of the plaint true?
12. The plaintiff, Nanda Krishna, examines himself and none else. The first two defendants, Bhupendra and Sutapa, examine themselves and Balai Krishna Roy, Sutapa's brother's son. [See the genealogical table in paragraph 5 ante.] Of the remaining two defendants, Butto Krishna and Menoka, the former pledges his oath before me; the latter does not. This is all the oral evidence. It only remains to be added that Bhupendra and Sutapa are examined at their present residence, 102 Sovabazar Street, on a Sunday. An extraordinary step as this is taken because it is represented to me that Bhupendra is too old and too ill to come all the way to Court in order to give evidence. With the previous approval of the Chief Justice under Rule 3, chapter III of the Original Side Rules, and as desired by the learned counsel appearing for all the parties, I hold my Court at 102 Sovabazar Street on a Sunday (September 12) and examine not only Bhupendra, aged 90, lying in his bed, but also his wife, Sutapa, so that this lady aged 71, may be spared the trouble of attending Court.
13. The documentary evidence on behalf of the plaintiff consists of the two Bengali deeds dated June 27, 1928, attending Nanda Krishna's adoption, the plain copies of which are annexures A and B (wrongly written as exhibits) to the plaint, and the official translations of which are the plaintiff's documents numbering 1 and 2 at pages 1-9 of the admitted brief of documents, Ext. A. This admitted brief contains four documents--the first two of which are the official translations just referred to. They are admitted. The remaining two are not. So the brief of documents is marked exhibit A on admission to that extent. The documentary evidence on behalf of the defendants consists of two affidavits--one by Bhupendra dated February 1, 1963, Ext. 1, and another by Balai Krishna Roy of the same date, Ext. 2. Both the affidavits came to be affirmed and filed at the interlocutory stage during the carriage of this suit.
14. The first four issues run into one another, their decision turning mainly on a true construction of the two deeds of adoption--putra dan patra by Radhikalal and Suniti and dattaka putra grahan patra by Bhupendra and Sutapa. Heading the two deeds together--and one is simply a rehash of the other--the intention of the parties thereto, the natural parents on the one hand and the adoptive parents on the other, appears to be more than clear. Denuded of non-essentials they reveal two principal terms on which Radhikalal and Suniti agree to give, and Bhupendra and Sutapa agree to take, Nanda Bhusan, the son of the former couple, in adoption, under a new nomenclature: Nanda Krishna. These two terms are-
I. The adoptive parents shall bring up Nanda Krishna as a son of their loins and keep him too "as our own son, born of our loins, permanently in our family and estate and in the enjoyment and possession of properties."
II. Nanda Krishna shall become heir and proprietor of all movable and immoveable properties etc. left by the adoptive parents. [What, if they renounce Nanda Krishna or leave nothing by disposing of all their properties before they die?] Hence, it is agreed by and between the parties: "In no circumstances, at no point of time, and never, we (the adoptive parents) shall be competent to renounce the aforesaid adopted son or to deprive him of the light of enjoyment and inheritance in respect of the properties etc."
15. Nothing is more explicit in the first term than the recognition of the right of Nanda Krishna to nurture and to the enjoyment and possession of the properties by being permanently in the family and the estate of Bhupendra and Sutapa, just on the foot of being a son of their loins. The word "permanently" does not stand by itself. It goes with the words: "as our own son, born of our loins." On the matter provided for by this term, therefore, Nanda Krishna cannot claim a right higher than that of a natural-born son.
16. This cannot, however, be said of the second term. Bhupendra, be it remembered, is an authoritarian father under the Dayabhaga law. He has aw absolute power to dispose of his property in any manner it is his pleasure to do, no matter whether the property is ancestral or self-acquired. Such a one and his wife become bound to themselves, no less to Nanda Krishna, the son of their choice, and his natural parents, by the clear, solemn and ringing recital in their deed:
"In no circumstances, at no point of time, and never, we shall be competent ........ to deprive him of the right of enjoyment and inheritance in respect of the properties etc."
So soon as that is said, the absolute power of Bhupendra to dispose of his properties, even by disinheriting his son or driving him away from his home, is gone. Driving him away will be to deprive him of the enjoyment of the property. Disinheriting him will to be deprive him of the inheritance, But Bhupendra has solemnly bound himself to do neither. To that extent, therefore, Bhupendra's rights over his properties are curtailed or limited. And just to that extent too, Nanda Krishna's rights are there over the properties of Bhupendra. What holds good about Bhupendra holds good about Sutapa too mutatis mutandis.
17. I do not deal with that part of the second term which provides that it shall not be likewise competent for Bhupendra and Sutapa to renounce their adopted son, Nanda Krishna, I do not, because of two reasons. One, a valid adoption once made--and here it has been validly made--cannot be cancelled. See Section 493 at page 657 of Mulla's Principles of Hindu Law, 12th edition. Two, even Nanda Krishna does not come to Court with the case that he has been renounced by his adoptive parents, one of whom (Bhupendra), on the contrary, says in his answers to the questions put to him in cross-examination:
163. Did you at any time try to sell this house at 12 Biswambhar Mullick Lane?/No.
164. Do you want to get rid of that property?/No. Why should I sell it? This is my paternal property.
165. Don't you think; that it should go to Nanda, your son?/Yes. When I am no more, it will be his.
166. Would you really like that the property would go to your son Nanda after your death?/Yes.
Answers as these tell. Here is a nonagenarian, or an octogenarian (82) if what Nanda Krishna estimates his age to be is correct (q. 294), who says so on oath lying in his bed, and knowing all too well that his days are numbered, when he will have to account himself to his Maker. He has impressed me as a perfectly honest man. One has only to hear him in order to be convinced how truthful his evidence is, notwithstanding an infirmity here or an infirmity there due to his own infirmity on account of age. If his evidence stands, as it does and must, what is seen is not renunciation of his adopted son, Nanda Krishna, but just the opposite: recognition of his right under the deeds of adoption--from which this venerable gentleman is not deviating, heartbroken though he is and has enough reason to be. [More of which hereafter in paragraph 31 et seq. infra.] And the house at 12 Biswarnbhar Mullick Lane is the property that matters most in this litigation. Give Nanda Krishna that here and now. He will at once cease to grouse and growl.
18. I return to the second term of Nanda Krishna's adoption--a term in which I see curtailment of Bhnpendra's absolute power to dispose of his property and necessarily enlargement of Nanda Krishna's right pro tanto. [See paragraph 16 ante.] In support of such a conclusion in the context of the two deeds attending Nanda Krishna's adoption, Mr. Gouri Mitter, the learned leading counsel for Nanda Krishna, refers me to the following passage from Mulla's Principles of Hindu Law, 12th edition; Section 498 (2) at page 663-
"......where the boy is given in adoption under an express agreement that the adoptive father shall not dispose of his property to the prejudice of the adoptive son, the adoptive father cannot dispose of the property to the boy's prejudice."
In support of this proposition, reference is made in the footnote (z) at page 663 of the book to that well-known decision of the Privy Council in Surendrakeshav Roy v. Doorgasundari Dasee, 19 Ind App 108 at p. 132 (PC): a case Mr. Gouri Mitter relies upon as well. But in Surendrakeshav's case, 19 Ind App 108 (PC), the double adoption, the two Ranees, each being a co-wife of the other, were determined to make, and did make on May 20, 1879, failed. Surendrakeshav and Norendrakeshav were the two boys adopted so simultaneously--one by each Ranee. About Surendrakeshav, the plaintiff-appellant before the Judicial Committee, Lord Hobhouse, delivering the judgment of the Board, says:
"It is not now contended that his adoption is valid in law, as indeed it clearly is settled that it is not." : page 126 of the report.
That being so, how the proposition quoted above can be based on Surendrakeshav's case, 19 Ind App 108 (PC), is not understood, though I yield to none in my veneration for Mulla. Surendrakeshav succeeded, not because of adoption, but in spite of it destitute of legal effect. What happened was that Rajah Bejoy Keshav Roy died on April 20, 1879, leaving behind him a will made on the preceding day: April 19, 1879, the effect of which was to leave some beneficial interest of the large estate that was his, undisposed of. And the two Ranees became entitled to the beneficial interest in the surplus for the widow's estate. Seized thereof, they executed an ikrar with a view to preserving the rights of Surendrakeshav and Norendrakeshav, illegally adopted though they were. By the ikrar, each Ranee could and did contract so as to bind her own interest. And then, to quote Lord Hobhouse again, from his Lordship's judgment at page 132 of the report--the very page Mulla quotes at the footnote (z) of page 633 of his book:
"The Ranees wished to make the boys the heirs of the Rajah. In form they did so; they could not do it in substance. But they could, so far as their own interest would go, give them the same benefit out of the property as if they had actually been heirs. Their Lordships hold that the deed expresses this intention, and that by it the Ranees became bound to one another and the boys to carry it into effect. It is a startling thing to be told that the Ranees could immediately afterwards turn the boys adrift, or that the survivor of them can do so after the arrangement has been in force for five years."
Thus, the two boys--and more so Surendrakeshav in the context of facts obtaining there--could not be turned adrift, not because of their adoption and an express agreement attending it, but because of the agreement (ikrar) only, adoption fading out as illegal. It therefore, appears to be clear that the proposition Mulla lays down is not perhaps a proposition that can be culled from Surendrakeshay's case. 19 Ind App 108 (PC).
19. At the same time, the soundness of the proposition looks obvious on first principles, if I may say so, with respect. And I endorse it. The agreement, which the two deeds of adoption disclose in the case in hand, is not of the type where the natural father renounces all or part of his son's right so as to bind that son when he comes of age: a type Viscount Dunedin condemns, subject to the grant on adoption of a life-estate or less to a widow regarded as valid by custom, while delivering the judgment of the Board in Krishnamurthi Ayyar v. Krishnamurthi Ayyar , a case Mr. Gour Mitter cites. The agreement before me is one where the natural parents of Nanda Krishna do nothing to prejudice or affect his rights in future, but ensure on the other hand that the adoptive parents shall not be able to do anything to his prejudice with a view to depriving him of his enjoyment or inheritance of the properties. It is a case of enlargement of the adopted son's rights, not of curtailment, as in Krishnamurthi Ayyar's case . Again, "the guardianship power" of Radhikalal over his son Nanda Bhusan aged 16 is paramount here. And that power is being exercised in a manner which can only enure to the benefit of his minor son so as to constitute a valid consideration. Thus, the agreement stands.
20. Mr. Banerjee, the learned leading counsel for the first two defendants, Bhupendra and Sutapa, concedes that "the agreement as agreement be accepted." But he refers me to what is known as Kharch-i-pandan case: Nawab Khwaja Muhammad Khan v. Nawab Husaini Begam, 37 Ind App 152 (PC), contends that Tweddle v. Atkinson, (1861) 1 B and S 393, is inapplicable here, and rounds off his submission by inviting me to do equity in all circumstances the evidence reveals, since Nanda Krishna has proceeded in equity to enforce his claim, just as Husaini Begam proceeded in the Kharch-i-pandan case, 37 Ind App 152 (PC). As Mr. Banerjee cites the Privy Council decision on marriage settlement (Kharch-i-pandan case, 37 Ind App 152 (PC)) where the unsuccessful contention raised was that, not being a party to the settlement, the lady was not entitled to enforce its provisions, it is but proper to make the observation that the right of Nanda Krishna to sue has not been questioned and is not capable of being questioned either. It will be noticed that no issue has even been directed to that cud. Then, far from being a stranger to the matter, Nanda Krishna passing for ever from his own family (to which he had his ties of love and affection for 16 years) to a new family, though of his aunt, is a very necessary and vital part of it. It is therefore unnecessary to consider whether a stranger to a contract which reserves a benefit for him can or cannot sue upon it, going by the tests laid down, for example, in Juan Chandra v. Monoranjan Mitra . About my doing equity, all I need say at this stage is: I am clear that the plaintiff Nanda Krishna has an important right --the right of not being deprived of his inheritance etc. If I find that that right has been invaded upon or is about to be invaded, certainly I shall grant him suitable relief. If I do not find so, no relief he will get from me.
21. So, upon what goes before, the rights of Nanda Krishna and his adoptive parents go that tar and no further. To sum up, I. Both the adoptive parents cannot dispose of their properties so as to deprive Nanda Krishna of the right of enjoyment and inheritance thereof, bound as they are by their own agreement to that end : vide dattaka putra grahan patra dated June 27, 1928. That is how they themselves have cut down their rights.
II. What they have cut down so becomes the right of Nanda Krishna.
22. But how stand the rights claimed by him for maintenance at Rs. 400 a month, recovery of the very various moveables in specie, failing which compensation of a lakh of rupees etc.? By having been adopted with all ceremony, Nanda Krishna becomes the son of a father, both father and son being governed by Dayabhaga law. His mother (Sutapa) is governed by the same law too. So, how he can demand right now the moveables, which are theirs and not his, so long as they are alive and they are fortunately alive to this day really beats me. Even Nanda Krishna admits from the witness box as indeed he has to, that the moveables are not his property, but his parents' (q. 317). The adoption he has been through does not change the law applicable to him and his, from Dayabhaga to Mitakshara. Were it even so, a clear reductio absurdum though, all he could have gone in for was a partition. But Nanda Krishna, a trifling bit ambitious as he is, is claiming recovery of the whole lot of moveables in specie. A 'right' as this has only to be stated in order to be rejected as a rightless one. And Bhupendra, as also Sutapa, keeping their moveables or carrying them wherever they go, it is using incorrect language to say that they are detaining them. If I Keep your goods and do not return them on demand, I detain them. But when I keep or carry my own goods, to say that I detain them is to say the unsayable. That is just what Nanda Krishna says about his adoptive parents.
23. Maintenance? The right to nurture on the footing of a natural-born son is undoubtedly there. (See the first principal term of adoption discussed in paragraphs 14 and 15 ante.) But his father did all he could to nurture him in a most befitting manner suitable to his attainments and the status of the family he belongs to. After having passed the Matriculation examination, which he had taken at or about the time he was adopted when he was sixteen or thereabouts, he continued his studies and passed the B. A. examination. His adoptive father bore all the expenses. (See qq. 20, 21, 42 and 43 to the plaintiff, Nanda Krishna.) Graduation over, he started serving a regular clerkship in the firm of B. K. Bose, an attorney, on payment of a premium of Rs. 2,000. Who had put him in fund to pay the premium money? In chief, he cannot go further than this: "Some money was given by Kumar Narendra Nath Roy and some by my father. In his cross-examination, however, an hour or two later, his memory brightens up, and he says: "I cannot remember exactly. Rs. 1.500 was paid by Kumar Narendra Nath Roy and the balance by my father." (See qq. 42, 151, 152, 44, 153 ibid.) But the evidence, of the venerable father just in his nineties, is that he had paid all the expenses for Nanda Krishna to study in the firm of solicitors (q. 12 to Bhupendra). The father has not been cross-examined on this point, Now that Kumar Narendra Nath is dead, nothing is easier for Nanda Krishna than to attribute this financial help of Rs. 1,500 to him, belittling the help given by his father. Surely Kumar Narendra Nath will not rise from his grave to deny this false evidence of his nephew, Nanda Kirshna. True it is that evidence against the estate of a deceased, though uncorroborated may be acted upon, but only after a careful test and scrutiny: Hiralal Chatterjee v. Raj Kumar Mookerjee, 12 Cal L.J. 470. But the difficulty for Nanda Krishna is that the quality of his evidence, no less its quantity, is so poor. First and last, he does not impress me as a type by whose uncorroborated evidence I can go. And when it comes to the question of belief, after having nearcl and seen the rather and the son, I believe the father and disbelieve the son.
24. To continue noticing Nanda Krishna's articles of clerkship in the firm of solicitors, he had served as such for seven years, two years more than the requisite term of five. Still he could make a little headway beyond passing the preliminary examination. When it had come to taking the intermediate examination, he failed and discontinued his efforts to get himself enrolled as a solicitor (q. 42). Nanda Krishna must have been then at least 27. Having passed the matriculation examination at 16, he graduated himself at 20. Matriculation to graduation takes four years in the normal course. Add seven years of his clerkship. That makes him 27. And he has a father who was nurturing him till then, true to the terms of adoption and even beyond.
25. From education let another aspect of his life be now looked into. The Sanskara or sacrament, which, to a Hindu, marriage is, his adoptive parents had not overlooked either. True to the terms of adoption again, in 1933--only five years after the adoption--his father gave him in marriage, when he was 21 or thereabout: just the marriageable age. During this marriage, five children have been born--3 sons and 2 daughters. Nanda Krishna, on his own showing, appears to be singularly unfortunate in his children. His eldest son, now 25 or 26, went down with an attack of typhoid and emerged out of it with his brain deranged. The second one, Anadi alias Shamu, now 24 or thereabout, is "such a bad character" that the most cowardly and despicable attack on Bhupendra and Sutapa in the dead hour of night (paragraphs 9 ante and 31 et seq. infra) "could be possiole by him", as Nanda Krishna says (q. 336). Nanda Krishna had therefore driven him out ol the house never to see his face again, as he says. The third one, now 21 or so, is a moron. Now to the daughters. The eldest of the two, now 28, is married. Bhupendra and Sutapa gave her in marriage, bearing all the expenses and giving her ornaments too. The other daughter is 20 and unmarried. Bhupendra and Sutapa maintained them all, Nanda Krishna, his wife and five children, till January 31, 1962, when they had to leave their own home: 12 Biswambhar Mullick Lane. (See qq. 45, 46, 24-41, 47 etc. to Nanda Krishna, qq. 22-29, 21 etc. to Bhupendra and qq. 6-7 to Sutapa.)
26. In this background, the maintenance claimed by Nanda Krishna "aged about 51" when the plaint is presented (vide paragraph 8 thereto) and 54 at the trial, has to be adjudged. Whether under the old Hindu law or new (Section 20 of the Hindu Adoptions and Maintenance Act 78 of 1956), Nanda Krishna can claim maintenance so long as he is a minor. But he ceased to be a minor in 1933 when his right to be maintained ceased too. So, let no more be said of maintenance on which the deeds of adoption confer on him no right higher than that or a natural-born son.
27. The right to be in the family and estate and in enjoyment and possession too of the properties is no doubt there. But it is also no higher right than that of a natural-born son save that Nanda Krishna cannot be disinherited or driven out of the house. But he has neither been disinherited nor driven out. Bhupendra and Sutapa have instead driven themselves out. That means loss of the family life with the adoptive parents, the benefit of which Nanda Krishna had from June 27, 1928, to January 31, 1962. And the benefit meant the benefit of joint messing, deprivation of which hits Nanda Krishna, apparently an idler in spite of the best efforts ot his father, the hardest. But to concede the benefit of joint messing is to concede the right of maintenance which Nanda Krishna, with more than twice the age when minority ceases, cannot simply have. The right to be in the family is not an absolute right. It is just the right which a natural-born son has. A natural-born son misbehaving, or suffering the vampire of a son of his to misbehave, in the manner Nanda Krishna has done (see paragraph 31 et seq infra) would have been driven out of the house in no time. The second term of the deeds of adoption taboos that penalty for Nanda Krishna. So Nattda Krishna is where he is and where he has indeed the right to be, namely, at 12 Biswambhar Mullick Lane. And his adoptive parents are not where, in the normal circumstances, they ought to have been, by having been forced to court un exile. Law will be remarkable if it says to Bhupendra and Sutapa: 'No matter what the torture, you must stay on at 12 Biswambhar Mullick Lane.' I am relieved to find that, on a fair reading of the deeds of adoption, law is not so.
28. The story Nanda Krishna tells me of his father having been 'up and about' to sell 12 Biswambhar Mullick Lane with a view to depriving him of his inheritance etc. appears to be a story notorious for its meanness and falsity alike. I disbelieve it. I believe the telling evidence of the father I have reproduced in paragraph 17 ante. In the course of his false evidence, Nanda Krishna names one employee of the Roys, Jasoda, whose full name is Jasocla Pal, as Butto Krishna says (q. 88), having brought the intending purchasers for the house. Mr. Gouri Mitter therefore makes a point of Jasoda's non-examination and asks me to draw a presumption adverse to Bhupendra. Under Section 114 of the Evidence Act, a presumption is optional. The Court may presume; not that the Court must. Here I shall not presume against Bhupendra. I shall not, not only because of the evidence of Bhupendra which rings true, and no less of Butta Krishna which is equally good (qq. 85-89), but also because of the very high degree of probability, amounting to almost a certainty, that no one in his senses will go in for such a deal, once the two registered deeds of adoption, evincing the right of Nanda Krishna, are inspected on search. And search coupling with inspection there is bound to be.
29. Mr. Gouri Mitter relies on the telling evidence of the father (qq. 163-166 reproduced in paragraph 17 ante) as I do, and says: 'Give me a declaration on that footing.' Why shall I in exercise of my discretion--and this is purely a discretionary relief--when I see, upon the whole of the evidence, nothing like an invasion -- real or apprehended -- of his client's right?
30. It is now time to record formal answers to the first four issues discussion of which begins from paragraph 14 ante:
Issues 1 and 2 ........ As summarized in paragraph 21 ante. No other limitation of their rights the first two defendants suffer from. nO other right the plaintiff has. [See paragraph 22 et seq. ante.] Issue No. 3 ...... No (paragraph 22 ante).
Issue No. 4 ...... Yes (paragraph 27 ante).
31. I now proceed to the fifth issue--the issue on ill-treatment of Bhupendra and Sutapa in their own home at 12 Biswambhar Mullick Lane. The most shameful and shameless occurrence on the night of January 31, 1962, stands out boldly upon the whole of the evidence. What to speak of others even Nanda Krishna speaks of his mother having been gagged and sees blood coming out of her teeth (q. 178), Of the intruders who break in upon the bedroom of this old couple, Sutapa recognizes one as Shamu, Nanda Krishna's son and her grandson. So she does, because Shamu with a torch in his hand bends over her, his hair touching her forehead, and asks her in subdued voice to keep quiet--a voice she recognizes too. Sutapa says a lot more. She speaks of a gamcha put around her husband's neck in the form or a noose, obviously with a view to strangling him. She herself is stabbed on the hand. Two pieces of bangles she has on are taken away. An attempt is made to snatch her nose-pin too. A furore is raised. The miscreants flee. People come--of whom Nanda Krishna is one. Sutapa tells Nanda Krishna to his face: 'Look here! What has your son done?' All this takes place on the first floor. Sutapa and Nanda Krishna go to the second floor where Nanda Krishna lives with his wife and children. Shamu's room is found bolted from inside. Shamu opens the door and comes out, pretending to have been asleep. Nanda Krishna asks him: 'Have you done this to your grandmother?' Sutapa addresses him too: 1 have been able to recognize you, since I have been seeing you from your childhood. And you had asked me to keep quiet'. No more need be noticed of this sordid incident save that Mr. Gouri Mitter does not cross-examine Sutapa, and very rightly too, to my mind. Because it is his client's case, as also his evidence (q. 336 again, for example), that Shamu is a type who is up to this--for which Nanda Krishna expels him, his own son, for good, as he says ((qq. 50-52, 81-85, 107-112 etc.). This incident therefore, furnishes an illustration of the height of ill-treatment it has been the misfortune of Bhupendra and Sutapa to be subjected to in their own home.
32. There is a slight discrepancy I notice about the date of this inelegant occurrence. Nanda Krishna will put it as February 1, 1962, initially placing it on March 1 (qq. (34-35) and 50-52). The opposite version is not February 1, 1962, but January 31, 1962. It does not matter which--January 31 or February 1--though appearances are in favour of some confusion having arisen because of the incident at or about 2 a.m. of January 31 which according to the English way of reckoning continues up to the midnight following of January 31; the Bengali method reckoning the commencement of a day from sunrise or thereabouts. Nor does it matter that Bhupendra's evidence on the occurrence is not as vivid as Sutapa's. He is as much as 19 years senior to his wife. His memory is necessarily weaker. His evidence on recognition of Shamu that night is not happy. He will not even say that Nanda Krishna had come immediately after the occurrence. But he had come in fact, as Sutapa's evidence is--evidence which I accept. I see in such evidence of the nonagenarian no falsity, but a little senility. That this is so is confirmed by other matters he speaks of. He says that Nanda Krishna's children are 4 strong, adding at the same time that he has 3 sons and 2 daughters--which makes the strength of his children 5, not 4 (qq. 22-24). Again, he will speak of his natural born son who died long ago, but will not admit having any daughter ever (qq. 6-10), though by his dattaka putra grahan patra he laments over the death of his son and daughter both:
"A son and a daughter were born to us, and it is 18/19 years that they met their premature death."--page 1 of the admitted brief of documents, Ext. A.
33. What does matter is the truth of the occurrence of January 31 followed by the departure of Bhupendra and Sutapa from their own home where they wanted to live and die, as is the normal instinct of every human being. Who has ever heard of a person with one foot on the grave fleeing his own home! It, therefore, needs no imagination to see that this was the culminating point of previous ill-treatment both Bhupendra and Sutapa speak of: wickedness of the "vagabond" of Shamu, constant demand of money and property, threats to do violence, indifference of Nanda Krishna to such conduct (qq. 105-116 to Bhupendra), misbehaving by Shamu such as theft of the crown and flute of the deity Gopal Jiu, complaint to Nanda Krishna and his wife only to be riposted that it was Sutapa's habit to find fault with their boy etc. (qq. 9-10 to Sutapa). I accept this evidence which gives a very probable picture of what the family life at 12 Biswambhar Mullick Lane was like, after it had come to shipwreck.
34. What pains me most to find is that Nanda Krishna, who owes so much to Bhupendra and Sutapa, did so little to prevent them from leaving, or to compass their return to, their own home. Touching the feet of Bhupendra in my presence in the improvised Court room at 102 Sovabazar Street and imploring the old gentleman to have pity on him has the appearance of a make-believe which has made nothing like an impression on me. He tells me that he did likewise inside Ray J.'s chamber (q. 330). It is all very nice to show this sort of filial piety after he himself has launched a litigation against his venerable parents on false, frivolous and flimsy grounds. But what earnest effort did he put in on January 31, 1962, when his parents were leaving their own home with a heavy heart and on all subsequent days right up to December 21, 1962, when he presented his plaint to this Court? On January 31, 1962 (which Nanda Krishna wrongly takes to be February 1, 1962), Bhupendra with Sutapa left at about 10 a.m. after having gone through that terrible ordeal some eight hours earlier at 2 a.m. (qq, 97-89 to Nanda Krishna). That was the time to fall at their feet and to cry and cry so that they might not flee their own home. Nanda Krishna tells me that he enquired of them where they were going to (as it anything was left for an enquiry then) and along with his wife implored term not to leave the house giving them a double assurance of turning out Shamu from the house and cessation of any torture in future (q. 104). If this is true, certainly he did something as was becoming of a son. But the whole of the evidence completely satisfies me, he did nothing of the kind. Nanda Krishna continues, such an attempt by him and his wife failed, because Butto Krishna butted in and said: "Uncle and aunt, will you remain here to be bitten by a snake?" (q. 105). Butto Krishna says: "I have never said this" (q. 35). I believe Butto Krishna and disbelieve Nanda Krishna. I have failed to discover what interest Butto Krishna, who has apparently plenty and to spare, could have to take the onerous responsibility for this old couple; a great liability on all accounts. The house at 12 Biswambhar Mullick Lane? Certainly it was no longer in the gift of Bhupendra. It was not for him to assert his absolute ownership over the house after what he had given away by the dattaka grahan patra of June 27, 1928. The house is Nanda Krishna's in the long run, do what he may. By parity of reasoning, the house could not be his sister Binapani's, no matter how deeply Bhupendra and Sutapa love her. Then, to Bhupendra's straight evidence again:
Q. 158. Is Binapani's husband well off?/ Yes. Very.
Q. 159. Do you like to give No. 12 Biswambhar Mullick Lane to Binapani?/No. I need not go into other detail which I have weighed in my mind none the less. Upon all I see, I find as a fact that Nanda Krishna did nothing on January 31, 1962, to dissuade his parents from leaving their own home, even though he might have turned out Shamu--of which however I do not feel sure, the only evidence being the wholly unsatisfactory evidence of Nanda Krishna. And then how long will such a spoilt son take to come back? As Bhupendra says aptly in answer to my question (141): "It will not take a long time for Shamu to return." 35. On subsequent occasions when the couple came and took away their belongings--which indeed they had every right to do--Nanda Krishna stood by or at best asked them why they were leaving with their belongings (qq. 103, 244, 102 etc.). It looks, therefore, Nanda Krishna was more anxious for the belongings than the persons to whom they belonged. Paucity or words and excuses Nanda Krishna does not suffer from. He says too that when his parents were collecting the moveables after January 31, 1962, he touched their feet and requested them to return home (q. 116). Touching the feet, imploring etc. go ill with "the strong and vehement opposition" he had put in on such occasions and his parents forcibly" taking away the moveables-facts which he avers in paragraph 10 of the plaint and verifies to be true to his knowledge. Nanda Krishna, I regret to observe, does not realize where a lie can take him to. Similarly, upon the whole of the evidence, I conclude that he had never been to his parents to compass their return home, which he says he did.
36. Ill-treatment of Bhupendra and Sutapa during their stay at 1.2 Biswambhar Mullick Lane--their own home--and utter callousness on the part of Nanda Krishna thereafter, a symptom which is so consistent with previous ill-treatment for years, are writ large upon all I see. I must therefore, find the fifth issue in favour of the first two defendants.
37. On the seventh issue I now take up, a lot can be said, and all against Nanda Krishna who takes resort to one concoction after another, such as Butta Krishna and Binapani poisoning the ears of Bhupendra and Sutapa, speaking of a snake being nurtured in the house, Bhupendra refusing to take medicine from Nanda Krishna's wife etc. Suffice it to note that the allegations in paragraphs 9, 10 and 13 of the plaint on which this issue rests are (i) Butta Krishna's instigation as the result of which Bhupendra and Sutapa (with whom Butta Krishna was in collusion) had left 12 Biswambhar Mullick Lane, (ii) forcible removal of the moveables by Bhupendra and Sutapa on subsequent clays in collusion and conspiracy with Butta Krishna, and (iii) wrongful, as also illegal, withholding of the moveables by Butta Krishna and Menoka in collusion with Bhupendra and Sutapa. And suffice it to record that these allegations are untrue in fact and untenable at law. Butta Krishna's poisoning Bhupendra's ana Sutapa's ears is Nanda Krishna's guess (qq. 226-229). Again, he came to know of the withholding of the moveables by Butta Krishna and Menoka "from people and the servant" (q. 318). About such reckless allegations against respectable and well-to-do persons I find it difficult to speak with becoming restraint. This is the price Butta Krishna is paying with his sister-in-law Menoka for befriending their aged uncle and aunt when they are deserted by their own son. [See q. 109 to Butta Krishna.] On top of this, as Mr. Sen, the learned counsel for Butta Krishna and Menoka, submits, no title passed to these movables by the deeds of adoption; Nanda Krishna's is a right of inheritance only. [See paragraph 22 ante.] This submission seems unanswerable. Mr. Gouri Mitter has not answered it either. I, therefore, find this issue in favour of the third and the fourth defendants.
38. The sixth issue--the general one on the reliefs the plaintiff is entitled to--necessarily needs the finding that he is disentitled to any relief whatever.
39. In the result, the suit fails and is dismissed. Costs normally follow the event. But here they shall not. They shall not, because the Court treats an erring litigant of the type Nanda Krishna is as a father treats his erring child. The parties are so near to one another. But for the cussedness of Nanda Krishna fed and fostered by his unmanliness too, they ought to have been so dear to one another as well.
More, I cannot bring myself to believe that Bhupendra and Sutapa or even Butta Krishna and Menoka, magnanimous as they are, will levy execution ever for costs, even if I award them that. So, I direct, each party do pay and bear its costs.
40. Certified for two counsel.
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