Patna High Court
Smt. Andhi Kuer And Anr. vs Rajeshwar Singh And Ors. on 8 February, 1972
Equivalent citations: AIR1972PAT325, AIR 1972 PATNA 325, 1972 BLJR 842 ILR (1972) 51 PAT 859, ILR (1972) 51 PAT 859
JUDGMENT S.P. Sinha, J.
1. This appeal is by the plaintiffs and the cross-objection is by defendant No. 1. Having heard the parties and considered the pros and cons of the matters, in my opinion, neither of them have any merit and consequently both have to be dismissed for the reasons which I am presently giving.
2. In order to appreciate the controversy between the parties, it would be relevant to give a short genealogy:
Matar Singh |
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Dhanraj Singh-Mostt. Barti Kuer (D.8) Lachhman Singh
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--------------------------------------------- Jagu Singh
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Dular Singh (died Smt. Andhi Kuer Smt. Shampati |
during the life (Plff.1) Kuer (Plff.2).|
time of his father) |
Mt. Phoola Kuer (D.4). ------------------------
| |
Ayodhya Singh Rajeshwar Singh(D.1)
Minor Jitan singh (d.2)
Rajeshwar Singh, defendant No. 1, was adopted on the 25th July, 1949 by Mt. Barti Kuer, defendant No. 3, as a son to Dhanraj Singh, for which a deed of adoption duly registered was executed on the 24th February, 1950. It Is this adoption which has formed the subject-matter of the suit, the plaintiffs being Smt. Andhi Kuer and Smt. Shampati Kuer, the two daughters of Dhanraj Singh. The plaintiffs' case was that Mst Barti Kuer was a pardanashin and simpleton lady who had no capacity' to understand the transaction. Jagu Singh, the father of defendant No. 1 was a clever man and it was he who fraudulently and surreptitiously prevailed upon Mst. Barti Kuer and got a deed of adoption executed in favour of one of his sons. According to the plaintiffs Mst. Barti Kuer was not allowed to know the contents of the deed and yet she was made to execute it. The plaintiffs stated that they got knowledge about the execution of the said deed on the 25th of November, 1960 from Shri Harinandan Singh, Sarpanch of village Kurkuri, the village to which Mst. Barti Kuer, her husband and Rajeshwar Singh belong.
In the plaint, as originally filed on the 16th December, 1960, the plaintiffs sought a declaration that the deed of adoption dated the 24th February, 1950 was illegal, invalid, null and void and not binding npon the heritage of Dhanraj Singh or upon the plaintiffs and further, defendant No. 1 was not the adopted son of Dhanraj Singh. As stated earlier, Mst. Barti Kuer was made a party defendant to the suit as defendant second party. On the 23rd December, 1962, during the pendency of the suit, Mst. Barti died and thereafter the plaintiffs claimed a further relief, namely, that of being put in possession over the properties described in Schedule 1 of the plaint after dispossessing Rajeshwar Singh and his minor son who were defendants first party to the suit. There was another defendant, namely, the widow of the pre-deceased son of Dhanraj Singh, who was defendant third party to the suit. Defendant third party, however, neither appeared nor contested the suit I find that Mst. Barti Kuer, defendant No. 3 also did not file any written statement. Thus, it was a contest between the plaintiffs on the one hand and the defendants first party on the other.
3. The defence was that since Dhanraf Singh had none to propagate his line of descent and to offer oblation after his death, he had decided to adopt defendant No. 1 as his son. He, however, could not do so due to his sudden death, but all the same he had authorised his widow, the said Mst. Barti Kuer to adopt defendant No. 1 as his son. In pursuance of the authority given by Dhanraj to his wife, Mst. Barti, the latter adopted defendant No. 1 on the 25th July, 1949, for which she executed and registered a deed of adoption dated the 24th February, 1950 and adopted the defendant after performing the due rites and ceremony in connection with the adoption. It was further stated that the allegation that it was Jagu Singh, the natural rather of defendant No. 1, who fraudulently prevailed upon Mst. Barti Kuer and got his son adopted without letting her know about the contents of the deed of adoption, was wrong and false. According to the defendant, the deed of adoption was executed by Mst Barti Kuer by her free will and volition and at her instance. The deed had been duly read over and explained and it was only after fully understanding the contents of it that she executed and registered it. Since the defendant No. 1 had acquired full right and tide as the son of Dhanraj Singh over his properties and had also come in possession of them during the lifetime of Barti Kuer and was continuing in possession, the plaintiffs had no right to challenge the adoption and to claim possession over the properties legally inherited by him.
4. In the light of the aforesaid pleadings, the trial court framed inter alia two issues:
(1) Issue No. 3 : "Is the deed of adoption dated 24-2-50 fraudulent, illegal, invalid, void and not binding upon the plaintiffs being the heirs of late Dhanraj Singh?"
(2) Issue No. 4 ; Is defendant No. 1 the adopted son of Dhanraj Singh deceased?"
On reading issue No. 3, I got an impression that the trial court contrary to law, had put the onus on the plaintiff to prove that the deed of adoption was void and illegal. I, however, find that notwithstanding the terminology of issue No. 3, the trial court did not mislead itself, rather it put the burden of proving the validity of the adoption deed on the defendant. The trial court observed--
"Both parties have adduced oral and documentary evidence in support of their respective contentions and the question of onus becomes merely academical one in such a case and the whole question has to be judged on the basis of relevant circumstances and conduct of the parties both before and after the adoption and attendant and antecedent circumstances of the like which may exist in a particular case and which might tend to either strengthen or weaken the probabilities of the alleged adoption having taken place....".
The trial court further observed--
"I agree with the contention of tie learned counsel appearing on behalf of the plaintiffs that the deed of adoption cannot confer any right upon Rajeshwar and that factum of adoption has to be proved independently and unless it is shown that Barti took him in adoption under the direction of her husband and the ceremony of adoption took place in which Jagoo offered his son to Barti and the latter accepted him as adopted son, Rajeshwar cannot be declared to be adopted son."
The trial court after going through the documentary and oral evidence on the record found that Rajeshwar Singh, defendant No. 1, was the adopted son of Dhanraj Singh and the deed of adoption dated the 24th February, 1950 was legal and validly executed and therefore binding upon the plaintiffs.
Coming to the relief to which the plaintiffs were entitled, the trial court observed that Dhanraj Singh died in the year 1942 but his widow died on 23-12-1962 after the passing of the Hindu Succession Act, 1956 and as such Mst Barti Kuer had half share in the the property of Dhanraj Singh. The trial court thus decided that in the half share of Mst. Barti Kuer the plaintiffs would be entitled to two-third share and Rajeshwar Singh would be entitled to one-third share.
5. The plaintiffs have filed the appeal against that part of the relief which has been disallowed to them and defendant No. 1 has filed the cross-objection against the relief granted to the plaintiffs.
6. Mr. Sinha, appearing for the appellant, submitted that the definite case of the plaintiffs was that Mst. Barti Kuer was a pardanashin lady as stated in paragraph 4 of the plaint which part of the pleading had not been controverted by the defendants and that since Mst. Barti Kuer was a pardanashin lady, by virtue of the ratio laid in the case of Mst. Kharbuja Kuer v. Jangbahadur Rai, AIR 1963 SC 1203, the onus lay upon the defendants to prove that the document of adoption obtained from Mst. Barti Kuer was duly executed with all consciousness about its implication. According to Mr. Sinha, on the basis of the evidence on the record.
the defendants had failed to discharge that onus and consequently the suit ought to have been decreed. It was further submitted that the evidence with regard to the authority to adopt having been given by Dhanraj Singh to his wife Mst. Barti, was so meagre that it could not be relied upon. There was only one witness in this respect, namely, Ramanand Singh (P.W. 4). Moreover, adoption if at all validly made, having been made after a lapse of over seven years from the date on which the alleged authority to adopt was given by Dhanraj Singh to Mst. Barti Kuer, the evidence on adoption required strict scrutiny. Mr. Sinha cited the decision of the Privy Council reported in the case of Dal Bahadur Singh v. Bijai Bahadur Singh, AIR 1930 PC 79, in this respect. According to Mr. Sinha, therefore, taking an overall view of the matter the defendants ought to have been held as having not established their case and consequently the plaintiffs' suit ought to have been decreed.
7. Learned counsel, appearing for the defendant-respondents, submitted that in view of the averments in paragraph 5 of the written statement filed by defendant No. 1 the allegation that Mst. Barti was a pardanashin lady had been, by necessary implication refuted. Moreover on the basis of the evidence of one of the plaintiffs itself, it was fully established that the said Mst. Barti Kuer was not at all a pardanashin lady. It was submitted that the expression "Pardanashin" has a special legal significance, as a lady who holds by the parda system, has an imperfect knowledge of the world and who is unable to fend for herself. Thus, although, pardanashin lady was a privileged class having been given special protection under the law, every lady who observed parda, though loosely described as "Pardanashin", was not a pardanashin lady in the legal sense of the term. In the case of Mst. Barti it was submitted that she was not a pardanashin lady in the legal sense of the term. In this respect reference was made to the evidence of one of the plaintiffs and also to the other witnesses on their side, besides several documents executed by Mst. Barti Kuer, the due execution of which had not been denied by the plaintiffs. Having regard to the evidence on the record, learned counsel for the defendants submitted that the trial court had rightly come to the conclusion that the adoption was valid in all respect and that such a conclusion, being valid and proper, must be confirmed.
8. I will not deal with the cross-objection by defendant No. 1 at this stage. I will do so after deciding the matters arising in the appeal.
9. On the basis of the arguments made on behalf of the parties, the questions which require to be considered are:--
1. Whether Mst. Barti was a Pardanashin lady and had executed the deed of adoption with full consciousness about its implications.
2. Whether there was authority to Mst. Barti Kuer from her deceased husband to adopt a son to him; and
3. Whether the factum of adoption had been duly proved.
I need not pause to consider the question of onus as to whether it lay upon the defendants or upon the plaintiffs to prove that the adoption was valid or invalid because in this case, both the parties have adduced oral and documentary evidence in support of their respective claims and now the question has to be decided on an appreciation of such evidence. I need not also pause to consider that in case a document is executed by a pardanashin lady the burden to prove its due execution would always rest upon the person who seeks to sustain the transaction evidenced by it. He has to establish that the transaction was entered into by the pardanashin lady after clearly understanding the nature and implications of the transaction. The Supreme Court in the case of Mst. Kharbuja Kuer, AIR 1963 SC 1203, referred to above, has settled the law in this respect. It has been observed:--
"....In India pardanashin ladies have been given a special protection in view of the social conditions of the times; they are presumed to have an imperfect knowledge of the world, as, by the pardah system they are practically excluded from social intercourse and communion with, the outside world ...".
As to what is the extent of the protection which law gives to a pardanashin lady it was observed by reference to the decision in the case of Geresh Chunder Lahoree v. Mst. Bhuggobutty Debia, (1869) 13 Moo Ind App 419 (PC):--
". .. . that as regards document taken from pardanashin women the court has to ascertain that the party executing them has been a free agent and duly informed of what she was about. The reason for the rule is that the ordinary presumption that a person understands the document to which he has affixed his name does not apply in the case of a pardahnashin woman. .....".
It was finally concluded that the onus to prove the due execution of a document by a pardahnashin lady would lie on the person who seeks to rely on it for his claim. These principles are salubrious principles which a court has always to bear in mind while dealing with transactions to which a pardanashin lady was a party. Necessarily, therefore, where the plaintiff alleges that the document was executed by a pardanashin lady but the defendant is able to prove that notwithstanding such an allegation in the plaint, the lady could not be deemed to be a pardanashin lady, the legal protection to the lady in such a case would vanish. In the instant case, therefore, it has to be decided as to whether Mst. Barti Kuer was a pardanashin lady.
As stated by me earlier, in paragraph 4 of the plaint, Mst. Barti Kuer has been described as a pardanashin lady. It is stated that she "is an old, illiterate and simple villager and pardanashin lady and has no capacity to understand transaction ....". Defendant No. 1 in paragraph 5 of his written statement has stated-- "That the allegations contained in para 4 of the plaint is false and concocted. It is entirely false to say that Mst. Barti is an old and simple villager and has no capacity to understand transaction....". Although it is argued on behalf of the plaintiffs appellants that the pleading in paragraph 4, relating to the pardanashin character of Mst. Barti Kuer has not been specifically denied by the defendant, I think, the argument is unacceptable. The expression' "Pardanashin" has not to be confused with a lady observing parda. A lady observing parda may not be a pardanashin lady in the legal sense of the term. The term "pardanashin lady" is not a term of art. It has special legal significance as one who is unable to understand the transaction by virtue of the manner in which she has been brought up. If, therefore, the plaintiffs alleged that the lady was a pardanashin lady and the defendants refuted it by saying that the said lady had the fullest capacity to understand the transaction, in my opinion, it would amount to denial by necessary implication that the lady was not a pardanashin lady. Once it is so denied it will now lie upon the plaintiffs to prove that the lady was in fact a pardanashin lady. In this background I now refer to the plaintiffs witnesses. Plaintiff No. 1, who has examined herself as P.W. 12, stated that her mother used to raise loan by executing mortgage bonds and that for executing such mortgage bond, she used to go to the registration office herself. Whenever she fell in need of money she was able to find out a creditor for herself and in case she failed to do so, she used to direct Jagu Singh to find out a creditor for her. She used to go to creditors herself and also used to settle the terms on which the creditors would give her money. She used to pay the rent for the lands herself. She used to supervise the work that the labourers were doing in her field and used to divide the produce of the land herself. Normally the work of Mst. Barti's land cultivation used to be looked after by the husband of plaintiff No. 1, but if and when he went out Mst. Barti Kuer herself looked after the cultivation. It was further admitted by plaintiff No. 1 that her mother never used to consult anyone of them and whenever she had to execute a document, she used to do it all by herself of her own, accord.
The conduct of Mst. Barti Kuer as described by plaintiff No. 1 herself, is not that of a Pardanashin lady but of a lady who was fully capable to undertake responsibilities and to enter into transactions with fullest consciousness about their implications.
Referring to the evidence of the other witnesses on behalf of the plaintiffs, P.W. 4 Harinandan Singh, who is the Sarpanch of the village, testified to the fact that when he had a talk with Most. Barti Kuer in the year 1960 she was fully capable of understanding things. Similarly, P. W. 8, Ram Prasad Thakur, described Most. Barti Kuer as a clever lady. P. W. 11, Misri Singh went to the length of saying that in matters concerning cultivation, some time he used to take advice from Most. Barti and that her neighbours also used to go to her. P. W. 14, Ramchandra Singh, who is the husband of Plaintiff No. 2, admitted that Most. Barti Kuer used to look after her affairs herself. She used to pay rent, chowkidari and also disburse wages to the labourers. She herself used to sell grains which were in excess of her needs and that she continued to look after her affairs till she died. I need not refer to the evidence of the defence witnesses in this respect because it will serve no further purpose.
Apart from the oral evidence, there are documents executed by Most. Barti Kuer herself such as Ext. B (1), a sale deed executed by Most. Barti Kuer for herself and as guardian for Rajeshwar Singh, the adoptee; exhibit B, a rehan deed executed by Most. Barti Kuer for herself and as guardian of Rajeshwar Singh in favour of Laldhari and Ext. C, a sale deed dated 25-5-1954. The plaintiffs have not tried to avoid these documents on the ground on which they have tried to avoid the adoption deed. On the contrary, plaintiff No. 2, while deposing as P. W. 13, admitted the due execution of another Jarpeshgi in favour of Ramashrey by Most Barti Kuer as a genuine document.
10. Having regard to the evidence discussed above, it must be held that Most. Barti Kuer was not a lady who could be called a pardanashin lady in the sense in which the said terra is understood in law. Having come to the conclusion that Most. Barti Kuer was not a pardanashin lady in the legal sense of the term and she having executed the deed of adoption, the question as to whether the deed was executed with full consciousness about its implications no more requires to be proved by the defendants. The deed is there and the execution is admitted by Most. Barti Kuer and I may add that in that document the Registrar has not described the executor as a Pardanashin lady; the document is a valid document unless it can be proved that Most. Barti Kuer neither had the authority from her husband to adopt defendant No. 1 nor had she actually adopted defendant No. 1 as a son.
11. Now on the question of authority to adopt, although Mr. Sinha has urged that the solitary evidence on this point is that of D. W. 4, but I find that besides D. W. 4, D. Ws. 7 and 8 are also wit nesses on that point. D. W. 7 is the typist who typed a petition filed by Most. Barti Kuer in Title No. 46/19 of 1943 seek ing transportation of Rajeshwar Singh from the category of plaintiffs to the category of defendants. This petition is exhibit D. It is stated therein "That during his lifetime the husband of the petitioner was completely ready & prepared to adopt Rajeshwar Singh, plain tiff No. 3 after taking him from his father, Jaggu Singh but suddenly he fell ill seriously and so he directed the petitioner to adopt, plaintiff No. 3, Rajeshwar Singh in case he would die."
P. W. 7 stated that the above statement was mentioned in the said petition at the instance of Most. Barti Kuer. P. W. 8 is the nephew of the family purohit of Most. Barti. He stated that Most. Barti Kuer called him and asked him to send his uncle and when he asked the purpose, she stated that as per the order of her late husband she had to adopt Rajeshwar Singh. She wanted to know the auspicious date for such adoption. D. W. 4, even according to the learned counsel for the appellant, has admittedly testified to the authority which Most. Barti's husband gave to her to adopt a son for him. It is, however, urged that the testimony of this witness was unreliable because he was a witness of the type of an omnibus witness testifying to everything that was necessary to prove the validity of the adoption. In my opinion, such a criticism is wholly besides the point. On reading the deposition of P. W. 4, it cannot be said that he was in any way interested in putting forth what was not true or attempting to establish a case which was not true. He is a witness uninterested in Rajeshwar Singh or Most. Barti Kuer and he has truly described the situation under which he got a first hand knowledge of the authority conferred on Most. Barti Kuer to adopt Rajeshwar Singh. He is not a member of Rajeshwar's family nor in any way interested in the properties of the family. He is a caste man of Most. Barti Kuer and he often used to go to Dhanraj Singh during his lifetime. It was he who called the Vaidya when Dhanraj Singh fell ill and it was in his presence that Dhanraj Singh authorised Most. Barti Kuer to adopt Rajeshwar Singh as his son.
The fact that Most. Barti Kuer had been conferred with the authority to adopt Rajeshwar Singh is mentioned in the deed of adoption itself (Ext. 4). The statement relating to the authority to adopt recorded in Exhibit is an admissible statement in terms of Sub-clause (7) of Section 32 and also sub-clause (3) thereof being statement against the interest of the dead person making it.
Mr. Sinha, at this stage, referring to the decision of the Privy Council in AIR 1930 PC 79, submitted that the said statement would not be admissible under Clause (3) of Section 32 because Most. Barti Kuer was at the fag end of her life and if after a lifetime enjoyment of her husband's properties she wanted to change the line of inheritance it would not be a statement against the pecuniary or proprietary interest of Most. Barti Kuer.
The case of the Privy Council was one in which the husband had given the authority to adopt to his wife a son to him in the year 1860 and the wife adopted a son on the 6th October, 1914, i.e., after a lapse of 54 years, herself dying in October, 1915. It was only under those circumstances that the privy council observed that if after life long enjoyment of her husband's property the widow desires at the end to pass it on to her relations, and for the purpose she goes on to adopt her grandson it was not a statement of a dead person admissible under Section 32 (3) of the evidence Act.
12. In the case before me Dhanraj Singh died in the year 1942, the adoption took place in July, 1949 and the deed of adoption was executed on 24th February, 1950, Most. Barti Kuer lived even after the deed of adoption for a period of 12 years, she having died on the 23rd December, 1962. On the facts of this case the ratio of the case referred to by Mr. Sinha does not apply. The statement regarding the authority to adopt made in Exhibit 4 was, therefore, admissible.
13. Thus, in view of the oral and documentary evidence, I think, the trial court rightly held that Most. Barti Kuer had authority from her husband to adopt Rajeshwar Singh as a son to her deceased husband.
14. The next question is with regard to the factum of adoption.
Learned counsel for the appellants submitted that if Mostt. Barti Kuer had had the authority to adopt Rajeshwar Singh there was no reason for delaying the adoption. The delay cast a doubt upon the actual adoption.
Now in this respect, I find that soon after Dhanraj's death litigations ensured for a partition of the properties left by Dhanraj Singh. Such litigations got finally settled some time in the year 1947 and it was only thereafter that Most. Barti Kuer felt relieved to adopt Rajeshwar Singh. These facts emerge by reading Exhibit 5 which is the plaint in Title suit No. 46/19 of 1943 and Exhibit 7 (a), the order sheet of the title appeal, the title appeal having been finally disposed of on the 17th March, 1947.
Quite apart from the fact that the delay in adopting has been satisfactorily explained, the power to adopt does not terminate until the lifetime of the widow. She can adopt, if she has the due authority from the husband at any time in her lifetime. Thus in my opinion, nothing turns upon the fact that although the authority to adopt was given in the year 1942, the adoption was made after a lapse of seven years therefrom.
15. On the question of the factum of adoption there is overwhelming evidence on the record which goes to prove the actual adoption. Before I go into the question of actual adoption, I would cursorily state the circumstance which led to the adoption.
From the genealogical table stated at the beginning of this judgment, it appears that Dhanraj Singh had a son Dular Singh, but he had predeceased him. Dhanraj Singh was, therefore, left with no son. He had daughters no doubt, but during Dhanraj's lifetime he had not been blessed with a grandson from any of his daughters. From the evidence of P. W. 14, the husband of Shampati Kuer, it appears that plaintiff No. 2, Shampati Kuer gave birth to a son who was named Rameshwar but this must be after Dhanraj's death. According to P. W. 14, Bameshwar was aged two years only at the time of Dhanraj's death. P. W. 5, however, stated that Rameshwar died at the age of 12 years and that it was now four years past since the boy had died. In other words if the boy had been alive he would have been 16 years of age, on the 14th June, 1965 when this witness was deposing. This would mean that Rameshwar would have been born some time in the year 1949 whereas Dhanraj Singh died in the year 1942 itself. Moreover there is no mention in the plaint of the existence of any Nati to Dhanraj Singh during his lifetime.
Thus Dhanraj Singh's only son was dead and he had no grandson either. Rajeshwar a grandson of his brother was born and his mother died a few years after his birth. There is evidence to show that Rajeshwar's house and Dhanraj's house were adjoining to each other. Rajeshwar Singh being a close agnate of Dhanraj, he was being looked after by Most. Barti Kuer and it was natural under such circumstance that if an adoption had to be made the choice would fall on Rajeshwar Singh. These facts are available from the evidence of D. W. 3, and D. W. 4. Then on the question as to whether, Rajeshwar Singh, was actually adopted besides the evidence of the defendant's witnesses, specially of D. Ws. 1, 2, 3, 4 and 8, there are documents which go to prove that Rajeshwar Singh had actually been adopted by Most Barti Kuer, Those documents consist of sale deeds and Rehan deeds executed by Most. Barti Kuer for herself and as guardian of her adopted son Raieshwar Singh, Exhibits B, B (1), C, C (1); Petition filed by Most. Barti Kuer for transposition of Rajeshwar Singh from the category of the plaintiff to the category of defendant, which she herself was, on the ground that Rajeshwar had since been adopted by her (Ext. D). The orders on the said petition (Ext. D) are Exts. E and E (1). By Ext. E (1) the transposition was allowed. Then there is the deposition of Rajeshwar Singh himself in a 107, Cr. P. C. proceeding filed by the plaintiff, marked as Ext. 6, in which Rajeshwar Singh had stated that he had been adopted by Most. Barti' Kuer, wife of Dhanraj Singh and that he had got eleven Bighas of land, of which he was in possession. There is also exhibit 7 which is the order of the court passed in the 107 proceeding, in which the court, while narrating the facts, had stated that Rajeshwar Singh got eleven Bighas of land from Most. Barti Kuer. These documents were noticed by the trial court also and I fully agree with the observations made by the said court that--
".... Had there been no adoption ft was not expected of her to get Rajeshwar Transposed from the category of the plaintiff to her own side. By so doing she was incurring a grave risk to herself because the property of her husband which she was to enjoy exclusively hence forward had to be shared by Rajeshwar and it is against human course of conduct that one would be so magnanimous as to share her exclusive property with the neighbour's son."
I fully endorse this observation,
16. Mr. Sinha, appearing for the appellants, referred to Exts. 1 (a) and 6. Exhibit 1 (a) is an entry in the admission register of the school, in which Rajeshwar Singh was admitted on the 22nd January, 1951, e. g., after his adoption. In this document under the column meant for the signature of father or guardian, the signature was that of Babu Jaggu Singh, the natural father of Rajeshwar Sinah. Similarly in exhibit 6 Rajeshwar Singh, while deposing in the 107 matter on the 1st June, 1962, gave out his father's name as Jaggu Singh. Mr. Sinha, on the basis of these documents, submitted that had Rajeshwar Singh been actually adopted in the family of Dhanraj Singh, there could have been no occasion for Raieshwar Singh to describe Jaggu Singh as his father.
Frankly speaking, I have not been able to get at the point In the school certificate the column which has been filed in by writing Jaggu Singh' is a column meant for father or guardian. It is not known whether Jaggu Signed as father or guardian. It cannot, therefore, be vouchsafed that Jaggu signed as father and not as guardian. In exhibit 6, Rajeshwar Singh, no doubt, has given out his father's name as Jaggu Singh and not Dhanraj Singh, but he also candidly stated that he had been adopted by Most. Barti Kuer, wife of Dhanraj Singh and that he got eleven Bighas of land from her. Nothing much, therefore, turns on the statement or mis-statement regarding the parentage of the deponent.
17. Having regard, therefore, to the facts, circumstances and evidence on the record, I think it has been fully established on the evidences that Rajeshwar Singh, defendant No. 1, was the adopted son of Dhanraj Singh and that the deed of adoption dated 24th February, 1950 was legally and validly executed by Most. Barti Kuer after fully understanding the contents of the same and in accordance with the authority vested in her by her husband, Dhanraj Singh to adopt a son to him. In this view of the matter the appeal has to be dismissed.
18. Coming now to the cross-objection, the objector's grievance is that no part of Barti's property could be decreed to be possessed by the plaintiffs. The trial court, as stated earlier, held that Most. Barti Kuer died after passing of the Hindu Succession Act and as such she was entitled to half share in Dhanraj Singh's property, the other half share being that of Rajeshwar Singh and that in such view of the law, Barti's share in Dhanraj's property would be divisible in three equal parts, 1/3rd going to Rajeshwar (defendant No. 1), Smt. Andhi Kuer (Plff. No. 1) and Shampati Kuer (Plff. No. 2) each. The trial Court has put certain other limitation on the plaintiff's right to possess the property which will fall to their share. There is no grievance on that account in the cross-objection.
19. Learned counsel, appearing for the cross-objector, has not been able to make out any case as to why he thought that the apportionment, as made by the trial court in Dhanraj's property, was in any way illegal or wrong. In such view of the matter the cross-objection must also be dismissed.
20. In the result the appeal and the cross-objection are dismissed. There will be no order as to costs.
Shambhu Prasad Singh, J.
21. I agree that there is no merit either in the appeal or in the cross-objection and both be dismissed. I would like to add a few observations of my own with regard to the decision of the Judicial Committee in (AIR 1930 PC 79) strong reliance on which was placed by learned counsel for the appellants. Apart from the fact that there was a time-lag of 54 years between the date of the authority and the adoption in that case, it is distinguishable on other ground as well. The widow of the last male holder in that case by the alleged adoption wanted to deprive the reversioner of the property and give it to her brother's grandson. In the circumstances it could not be said that her statement with regard to the authority was against her own pecuniary or proprietary interest and, therefore, admissible in evidence. In the instant case, Barti Kuer adopted an agnate of her deceased husband and thereby deprived herself as well as her daughters of part of the inheritance of her husband. Undoubtedly, therefore, her statemnets with regard to the authority and adoption are against her pecuniary and proprietary interest in the instant case. In Dal Bahadur's case, the widow died only one year after' the adoption. In the instant case, Barti Kuer remained alive for over 12 years after the adoption and died only after the institution of the suit. Her statements regarding authority from her husband to adopt a son and the adoption itself have rightly been held to be admissible in evidence by the Court below and can be used in support of the case of the defendant-respondent No. 1.