Madras High Court
M. Srinivasan vs John Bentic (Died) And Ors. on 3 November, 1988
Equivalent citations: AIR1989MAD334, AIR 1989 MADRAS 334
JUDGMENT Srinivasan, J.
1. App 952 of 1980 : The vital issue in this case relates to the claim of the plaintiff-appellant that he is the adopted son of deceased Kumaravelu. The first defendant in the suit is admittedly the wife of Kumaravelu. Defendants 2 and 3 were purchasers of certain properties from the first defendant The third defendant died pending suit and his legal representatives were brought on record as defendants 4 to 12. Pending the appeal, the first defendant-first respondent died. The plaintiff-appellant filed an application for recording him as the legal representative of the deceased first respondent and that was dismissed. The appellant filed a Letters Patent Appeal It is stated that the appellate Bench directed the matter to be considered at the time of the final disposal of the appeal. The second defendant-second respondent also died pending the appeal and his legal representatives have been brought on record as respondents 12 to 16.
2. The plaintiff relies on Exs. A-9, A-19, A-20, A-17, A-18 and A-8 in support of his case of adoption. The oral evidence consists of the depositions of the plaintiff himself as P.W. 1, his natural father as P.W. 2, an aunt of Kumaraswami as P.W. 3 and the plaintiffs wife's uncle as P.W. 4.
3. Before dealing with the evidence regarding adoption, reference has to be made to the pleadings. In the plaint, it is stated that the said Kumaravelu adopted the plaintiff as his adopted son from his childhood and brought him up and celebrated his marriage and gave presents to the plaintiff. It is also stated that the plaintiff was living with his adoptive father Kumaravelu and adoptive mother, the first defendant, as one Hindu undivided family. There is also reference in the plaint to a power of attorney stated to have been given by Kumaravelu to the plaintiff for managing the properties and collecting the rents and paying taxes. It is alleged that the plaintiff was doing the same and managing the estate of Kumaravelu as power agent. Significantly, the plaint does not mention even the date of adoption. No details with regard to the adoption are set out in the plaint No reference is made to any ceremony having been performed for adoption. There is also no allegation that there was a formal giving and taking.
13. Apart from the materials referred to above, the circumstance that the plaintiff is the eldest son of his natural father should also be taken into account as disproving his case of adoption. Normally, the eldest son would not be given in adoption. No doubt, there is no prohibition in law from giving the eldest son in adoption, but it is wholly improbable in Hindu communities. The case that the plaintiff was given in adoption even at the age of 3-1/2 or 4 years is wholly improbable and it cannot be accepted. Thus the entire evidence on record produced by the plaintiff does not make out the case of adoption.
14. Learned counsel for the plaintiff appellant argued that the evidence let in by the defendants is false and their entire case should be rejected on that ground. He draws my attention to the evidence of D.W. 1, that she got married on 4-7-1948. Learned counsel for the appellant relied on the recital found in Ex. B-10 dt. 22-6-1948, which describes the first defendant as the wife of Kumaravelu. Ex. B-10 proves that the first defendant was married even before June, 1948 and her evidence that she was married on 4-7-1948 cannot be true. Learned counsel also points out that while the case pleaded by the defendants is that the plaintiff was in permissive possession of the house, in the course of evidence, D.W. 2 stated that the plaintiff was paying the rent to Kumaravelu and was in occupation as a tenant According to learned counsel, the discrepancies in the evidence of the defendants prove that their case should not be accepted. Learned counsel contends that the entire case of the defendants that the plaintiff is not the adopted son of Kumaravelu is to be rejected and consequently the case of the plaintiff should be accepted I do not agree with the contention of the plaintiff-appellant. Just because the defendants have not given the correct or true particulars on some matters, it would not mean that the contention of the plaintiff should be automatically accepted and the adoption should be taken to have been proved.
15. In Kishorilal v. Challibai, , it was held that the evidence in support of the case of adoption should be such that it is free from all suspicion of fraud and so consistent and probable as to leave no occasion for doubting its truth. The Supreme Court pointed out that as an adoption results in changing the course of succession, depriving wife and daughters of their rights and transferring properties to comparative strangers or more remote relations, it is necessary that the evidence to prove the adoption should be such a nature as that it would not leave any alternative to the Court to accept the same. On the facts of the case, the Supreme Court held that merely because a person concerned was allowed to perform the obsequies of the alleged adoptive father and that his marriage was performed by the alleged adoptive mother would not prove adoption when on the evidence the adoption stood disproved. In Lakshman Singh Kothari v. Rup Kunwar, , the law was stated in the following terms: -- (Para 10) "..........Under the Hindu Law, whether among the regenerate caste or among Sudras, there cannot be a valid adoption unless the adoptive boy is transferred from one family to another and that can be done only by the ceremony of giving and taking. The object of the corporeal giving and receiving in adoption is obviously to secure due publicity. To achieve this object it is essential to have a formal ceremony. No particular form is prescribed for the ceremony, but the law requires that the natural person shall hand over the adoptive boy and the adoptive parent shall receive him. The nature of the ceremony may vary depending upon the circumstances of each case. But a ceremony there shall be, and giving and taking shall be part of it. The exigencies of the situation arising out of diverse circumstances necessitated the introduction of the doctrine of delegation; and, therefore, the parents, after exercising their volition to give and take the boy in adoption, may both or either of them delegate the physical act of handing over the boy or receiving him, as the case may be, to a third party."
In A. Raghavendra v. A. Chenchamma, it was laid down that a person who seeks to displace the natural succession to property by alleging an adoption must discharge the burden that lies upon him by proof of the factum of adoption and its validity.
16. Learned counsel for the plaintisel for the plaintiff-appellant relies upon the following passage in Mullah's Hindu Law, 12th Edn at page 655-
"488. Ceremonies relating to Adoption: --
(1) The ceremonies relating to an adoption are--
(a) the physical act of giving and receiving, with intention to transfer the boy from one family into another;
(b) the datta homam, that is, oblations of clarified butter to fire; and
(c) other minor ceremonies, such as putresti Jag (sacrifice for male issues) act of giving and receiving is essential to the validity of an adoption.
As to datta homam it is not settled whether its performance is essential to the validity in every case.
As to the other minor ceremonies, their performance is not necessary to the validity of an adoption.
(3) No religious ceremonies, not even datta homam, are necessary in the case of Sudras, Nor are any religious ceremonies necessary amongst Jains or in the Punjab."
The statement of law found in the text of Mulla will not help the plaintiff in the present case. It is no doubt true that no religious ceremonies are necessary in the case of Sudras, But as pointed out in Lakshman Singh Kothari v. Smt. Rup Kanwar, , there must be a formal ceremony of giving and taking.
17. Learned counsel for the appellant placed reliance on the following passage in the judgment of a Division Bench of Andhra Pradesh in Pentapati Venkaratnam v. Karri Venkatanarasaymma, :-
"14..........It is, no doubt true that the fact of adoption must be proved in the same way as any other fact and the evidence in support of an adoption must be sufficient to satisfy the very grave and serious onus that rests upon any person who seeks to displace the the natural succession by alleging an adoption. In the present case, however, there is a lapse of about 40 years between the time of the alleged adoption and the date of the suit. The challenge of the adoption is made by the plaintiff, not only of course, after the death of Tirupalirayudu but after the death of Viranna, the alleged adoptee. Where, as in this case, there is a long lapse between the adoption and its being questioned every allowance for the absence of evidence to prove such fact must be favourably entertained. As pointed out by their Lordships of the Privy Council in Venkata Seetharama Chandra Rao v. Kanchumarthi Raju, AIR 1925 PC 201, it stands to reason that after a very long term of years, and a variety of transactions of open life and conduct upon the footing that the adoption was a valid act, the burden must rest heavily on him who challenges its validity.........."
18. Learned counsel also relied on a judgment of mine in Kanthammal v. Bysani Sreeamulu Chetti, (1987) 100 Mad LW 71. I have in that case held that where an adoption had taken place long prior to disputes, strict proof of every part of the ceremony should not be insisted upon. In that case, there was a deed of adoption and a power of attorney wherein the status of the defendant as adopted son was acknowledged by the appellant. Having regard to the evidence on record in that case, I held that the adoption was proved. I have pointed out that no particular kind of evidence was required to prove an adoption but those who rely on it must establish it like any other fact whether they are plaintiffs or defendants.
19. Undoubtedly, proof of adoption may be difficult on account of long lapse of time but difficulty in proving a matter will not be a substitute for proof. The person who claims to be an adopted son of another person should produce such evidence as is available to prove the adoption. If the factum of adoption is proved by sufficient evidence on record, then, it is not necessary for the party to prove every part of the ceremony or the formalities observed by the parties for completing the adoption. The question will have to depend upon the evidence in each case. If the Court is satisfied on the evidence before it that there was an adoption in fact, then the Court would not insist upon the proof of the formalities undergone for bringing about the adoption. The position of law is restated in L. Debi Prasad (dead) by L.Rs. v. Tribeni Devi, . It was held in that case that under Hindu Law giving and receiving of a boy are absolutely necessary to the validity of an adoption and that they are the operative part of the ceremony, being that part of it which transfers the boy from one family to another. It is pointed out that there was no particular form so far as giving and acceptance were concerned It is also pointed out that in the case of all ancient transactions, it was but natural that positive oral evidence would be lacking and that in the case of an adoption said to have taken place years before the same was questioned, the most important evidence was likely to be that the alleged adoptive father held out the person claiming to have been adopted as his son, the latter treated the former as his father and their relations and friends treated them as father and son.
20. In the present case, the adoption is alleged to have taken place in 1942, only for the purpose of getting over the burden of proving the adoption. The conduct of the parties after the alleged adoption is inconsistent with the adoption having taken place. As pointed out already, if there was adoption, the plaintiff should have been shown as the son of Kumaravelu in the school records. I have also referred to the fact that the adoption could not have taken place within one year after the marriage of Kumaravelu with first defendant. Having regard to the entire evidence on record, I have no hesitation in holding that the plaintiff has not established that he is the adopted son of Kumaravelu. The suit has been rightly dismissed by the trial Court. This appeal fails and it is dismissed with costs.
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22. In view of the finding that the plaintiff is not the adopted son of Kumaravelu, A.S. 952 of 1980 is dismissed with costs.
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App. 864 of 1980:--
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24. In the result, the decree granted by the trial Court in favour of the plaintiff for possession is affirmed and the appeal fails and is dismissed. But there will be no order as to costs.