Appeal No 707 of 1966
Appeal by special leave from the judgment and order dated January 20 1965 of the Allahabad High Court Lucknow Bench in First Appeal No 67 of 1948
V section Desai and K P Gupta for the appellant
A K Sen E C Agarwala section R Agarwala and P C Agarwala for respondent Nos 1 to 6
The Judgment of the Court was delivered by Hegde J
In this appeal by special leave though number of contentions were taken we have not thought it necessary to go into all of them as in our judgment High Court s conclusion that Shyam Behari Lal 1st defendant had been validly adopted by Gopal Das is well founded
The suit from which this appeal arises is for possession of the suit properties on the basis of title
The 1st plaintiff Debi Prasad claims title to the properties as the nearest heir to Gopal Das his maternal uncle who died in 1934
The 2nd plaintiff is an alienee from the 1st plaintiff
In order to properly understand the controversy in the present case it is necessary to have before us the family pedigree
The admitted pedigree is as shown below 103 LAJJA RAM Kooramal died in 1874 Kedar Nath Hiralal died Laddoomal Ramass died in 1897 during his died father s life issueless time in 1871 1St wife 2nd wife died in Dwaramal 1874 alias Shyam Behari Dwarkadas Mantoo Mal Lal died in died in adopted by 1885 1897 at Gopal Das age 25 or 27
No 1 other children died during minority
Changumal Smt
Misro Smt
Kaushilla died in 1923 died in 1917 dead Smt
Raj Rani Shanker Sahai Manohar Das died childless died in alive 1944 or 1945 1929 Smt
Radhey Rani Smt
Drupati Mukut Behari Lal Deft
No 2 Govind Prasad Ram Kumar Ram Swarup Mahesh Bebari Ram Prasad Deft No 3 Deft No 4 Four other children died 1940 41 Gopal Das Smt
Kundan Smt
Shyamo Masani Din died on died in died in died issueless 18 2 34 1914 1923 or 1904 Smt
Bhagwan Baghumal Kedar Nath Del died in 1932 died in 1925 died on 19 10 1934 Debi Prasad Plff
No 1 Minor son Minor Minor daughter all died before 1890 104 The common ancestor of the family was Lajja Ram who died in 1874
We are now concerned with the branch of Kedar Nath the father of Gopal Das who died on February 18 1934
His widow Bhagwan Dei died on October 19 1934
The contention of Debi Prasad is that Gopal Das had separated from his family he died intestate and therefore being the nearest heir of Gopal Das he is entitled to the properties left by Gopal Das
The plaintiffs claim was resisted by the 1st defendant Shyam Behari Lai who claimed to be the adopted son of Gopal Das
According to Shyam Behari Lai he had been adopted by Gopal Das in about the year 1892 when he was only an infant
He also resisted the suit on the ground that Gopal Das was an undivided member of his family and therefore the 1st plaintiff in any event cannot claim any right to the suit properties
His further contention was that the 1st plaintiff was estopped from contending that he was not the adopted son of Gopal Das
Shyam Behari Lai died luring the pendency of the appeal before the High Court and his legal representatives are contesting this appeal Debi Prasad also died during the pendency of this appeal
The trial court substantially accepted the claim made in the plaint but in appeal the High Court reversed the decree of the trial court and dismissed the suit
The principal question that we have to decide in this case is whether the adoption pleaded by Shyam Behari Lai is true and valid
According to Shyam Behari Lai Gopal Das took him in adoption on February 8 1892 on the very day he was born
He says that very soon after his birth his natural parents handed him over to Gopal Das and his wife who took him over as their adopted son and thereafter performed the necessary ceremonies according to the custom of their community
He also pleaded that in the community of Gopal Das there is a custom of taking a child
in adoption on the very day of its birth
The plaintiffs have denied both the factum of adoption as well as the custom pleaded
We may at the very outset mention that Shyam Behari Lai had not been able to establish the custom pleaded by him
Nor was he able to adduce any satisfactory evidence about the actual adoption but he has produced considerable documentary evidence to show that Gopal Das was treating him for over a quarter of century as his son
There is also plenty of reliable evidence to show that close relations of Gopal Das including Debi Prasad treated Shyam Behari Lai as the son of Gopal Das both during the life time of Gopal Das and also thereafter till about the time the suit from which this appeal arises was instituted
As mentioned earlier Gopal Das as well as his wife died in 1934 and the suit from which this appeal arises was filed in 1946
105 While considering the question of proof of the adoption pleaded we must bear in mind the fact that the same is alleged to have taken place in 1892 nearly 54 years before the present suit was instituted
Therefore naturally it was extremely difficult for Shyam Behari Lai to adduce any oral evidence in proof of that adoption
All the persons who could have known about the adoption are likely to have died
Shyam Behari Lai himself could not speak to that adoption
His evidence is at best hearsay
It is true as observed by this Court in Addagada Raghayamma and anr
vs Addagada Chenchamma and anr
1 that it is settled 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
Again as held by this Court in Lakshman Singh Kothari vs Smt
Rup Kanwar2 that in order that an adoption may be valid under the Hindu law there must be a formal ceremony of giving and taking
This is true of the regenerate castes as well as of the Sudras
Although no particular form is prescribed for the ceremony the law requires that the natural parent should hand over the adoptive boy and the adoptive parent must receive him the nature of the ceremony varying according to the circumstances
In the course of the judgment Subba Rao J as he then was who spoke for the Court quoted with approval the following observations of Gopalchandra Sarkar in his book on Hindu Law 8th Edn The ceremonies of giving and taking are abso lutely necessary in all cases
These ceremonies must be accompanied by the actual delivery of the child symbolical or constructive delivery by the mere parol expression of intention on the part of the giver and the taker without the presence of the boy is not sufficient
Nor are deeds of gift and acceptance executed and registered in anticipation of the intended adoption nor acknowledgment sufficient by themselves to constitute legal adoption in the absence of actual gift and acceptance accompanied by actual delivery a formal ceremony being essential for that purpose
 That is also the view expressed in Mayne s Hindu Law wherein it is observed that the giving and receiving are absolutely necessary to the validity of an adoption they are the operative part of the ceremony being that part of it which transfers the boy from one family to another but the Hindu law does not require that there shall be any particular form so far as giving and acceptance are concerned for a valid adoption all that the law requires is that the natural father shall be asked by the adoptive 1  L11SupCI 8 2  106 parent to give his son in adoption and that the boy shall be handed over and taken for this purpose
There is no doubt that the burden of proving satisfactorily that he was given by his natural father and received by Gopal Das as his adoptive son is on Shyam Behari Lal
But as observed by the Judicial Committee of the Privy Council in Rajendrao Nath Holder vs Jogendro Nath Benerjee and ors1 that although the person who pleads that he had been adopted is bound to prove his title as adopted son as a fact yet from the long period during which he had been received as an adopted son every allowance for the absence of evidence to prove such fact was to be favourably entertained and that the case was analogous to that in which the legitimacy of a person in possession had been acquiesced in for a considerable time and afterwards impeached by a party who had a right to question the legitimacy where the defendant in order to defend his status is allowed to invoke against the claimant every presumption which arises from long recognition of his legitimacy by members of his family that in the case of a Hindoo long recognition as an adopted son raised even a stronger presumption in favour of the validity of
his adop tion arising from the possibility of the loss of his rights in his own family by being adopted in another family
In Rup Narain and anr
vs Mst
Gopal Devi and ors
1 the Judicial Committee observed that in the absence of direct evidence much value has to be attached to the fact that the alleged adopted son had without controversy succeeded to his adoptive father s estate and enjoyed till his death and that documents during his life and after his death were framed upon the basis of the adoption
A Division Bench of the Orissa High Court in Balinki Padhano and anr
vs Gopalkrishntt Padhano and ors3 held that in the case of an ancient adoption evidence showing that the boy was treated for a long time as the adopted son at a time when there was no controversy is sufficient to prove the adoption although evidence of actual giving and taking is not forthcoming
We are in agreement with the views expressed in the decisions referred to above
In the case of all ancient transactions it is but natural that positive oral evidence will be lacking
Passage of time gradually wipes out such evidence
Human affairs often have to be judged on the basis of probabilities
Rendering of justice will become impossible if a particular mode of proof is insisted upon under all circumstances
In judging whether an adoption pleaded has been satisfactorily proved or not we have to bear in mind the lapse of time between the date of the alleged adoption and the date on which the concerned party is required to adduce proof
In the 1 14 Moore s Indian Appeals p67 2 36 IA p 103
3 AIR 1964 Orissa p 117
107 case of an adoption said to have taken place years before the same is questioned the most important evidence is 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
There is no predetermined way of proving any fact
A fact is said to have been proved where after considering the matters before it the court either believes it to exist or considers its existence so probable that a prudent man ought under the circumstances of the particular case to act upon the supposition that it exists
Hence if after taking an overall view of the evidence adduced in the case we are satisfied that the adoption pleaded is true we must necessarily proceed on the basis in the absence of any evidence to the contrary that it is a valid adoption as well
As mentioned earlier Shyam Behari Lal has not been able to substantiate the custom pleaded by him nor has he adduced any direct evidence relating to the factum of adoption
His case entirely rests upon the decumentary evidence that he has produced to show that he had been consistently and continuously treated as the son of Gopal Das by Gopal Das himself during his life time and by all his friends and relations including Debi Prasad
Before dealing with the evidence mentioned earlier it is necessary to mention that the High Court has relied in proof of the adoption pleaded on the evidence of DW 10 Rikhab Das and DW 15 Chhotey Lal
Both of them were the close relations of the wife of Gopal Das
They are disinterested witnesses
Their evidence is to the effect that sometime after the birth of Shyam Behari Lal the wife of Gopal Das took him to her paternal home where Paon Pheri ceremony was performed
There is satisfactory evidence to show that this ceremony is customarily performed in the parental home of a lady who has given birth to her first child
We see no reason to disbelieve the testimony of these witnesses
Their evidence clearly indicates the fact that Shyam Behari Lal must have been taken in adoption by Gopal Das
We may also at this stage refer to another important circumstance appearing in the case
As mentioned earlier both Gopal Das and his wife died in the year 1934
The suit from which this appeal arises was instituted only in 1946 just a few months before the period of limitation for instituting the same expired
Debi Prasad has not given any satisfactory explanation for this inordinate delay in instituting the suit
This circumstance tends to show that the suit is likely to be speculative one
Now coming to the documentaryevidence referred to earlier it is proved that Shyam Behari Lal was admitted to school in 1907
A 658 is the application made for admission on December 12 1907
That application was signed by Gopal Das 108 It recites that Shyam Behari Lal is the son of Gopal Das
This admission of Gopal Das is an extremely important piece of evidence
No reason is given why Gopal Das should have made a false statement in that application
The explanation that someone must have filled in the form and Gopal Das must have signed the same in ignorance is not worthy of credence
A 261 is the certified copy of the deposition of Gopal Das in Regular Suit No 104 of 1917 in the court of the Subordinate Judge Faizabad
That deposition was given on May 9 1918
Therein Gopal Das admitted in more than one place that Shyam Behari Lal was his son
We next come to Exh
A 364 a copy of the nomination paper filed by Shyam Behari Lal for election to the municipal council
Gopal Das was one of the persons who proposed his name
Therein again Shyam Behari Lal was described as the son of Gopal Das
Gopal Das was an income tax assessee
He was assessed as the Karta of his Hindu Undivided Family
A 299 is the assessment order for the year 1921 22 Exh
A 300 is the assessment order for the year 1922 23 Exh
A 3 01 is the assessment order for the year 1923 24 Exh
A 302 is the assessment order for the year 1924 25 Exh
A 303 is the assessment order for the year 1925 26 Exh
A 304 is the assessment order for the year 1926 27 Exh
A 305 is the assessment order for the year 192728 Exh
A 306 is the assessment order for the year 1928 29 Exh
A 307 is the assessment order for the year 1929 30 Exh
A 309 is the assessment order for the year 1931 32 and Exh
A313 is the assessment order for the year 1935 36
While computing the income of the HUF the professional income of Shyarn Behari Lal as a lawyer was taken into consideration
Those assessment orders proceed on the basis that Gopal Das and Shyam Behari Lal constituted a joint Hindu family
It may be noted that most of those assessment orders were made during the life time of Gopal Das and evidently on the basis of the returns submitted by him
If Shyam Behari Lai had not been the son of Gopal Das he could not have been treated as a member of the coparcenary of which Gopal Das was the Karta nor his professional income would have been added to the income of the joint family of Gopal Das
These assessment orders have considerable evidentiary value
It may be noted that these documents came into existence at a time when there was no dispute
Next we come to the admissions made by the plaintiff him self
A 233 is the certified copy of the deposition of the plaintiff given in Regular Suit No 55 of 1935 in the court of Additional Subordinate Judge Faizabad
This deposition he 109 gave on May 20 1935 nearly a year after Gopal Das died
Is that deposition he stated  I am partner of the firm of Gopal Dass Chhangamal
Plaintiff No 2 is the proprieter of the said firm If Debi Prasad was the rightful heir to the estate of Gopal Das he could not have admitted in the year 1935 that Shyam Behari Lal was the proprietor of the firm Gopal Dass Chhangamal
Debi Prasad s explanation that on the date he gave that deposition he was unaware of the fact that he was the heir of Gopal Das cannot be believed
In Exh
A 226 the decree in the aforesaid suit Shyam Behari Lal was described as the son of Gopal Das
A 274 is another certified copy of the deposition given by Debi Prasad
This was given on July 19 1923 in a suit where Gopal Das was the plaintiff
Therein he stated in cross The plaintiff No 1 has got a son named B Shyam Behari Lal Vakil 
Our business is also ancestral business
His son Shyam Behari and his grand son Mukut Behari are members of a joint Hindu family
 He further stated therein Lala Gopal Das his son referring to Shyam Behari Lal and grand son are the sole owners of the firm styled Kuramal Kedar Nath
A 236 is the certified copy of the plaint filed by Shyam Behari Lal and Debi Prasad jointly in Suit No 353 of 1935 in the court of Civil Judge Faizabad
In paragraph 1 of the plaint it is stated  The proprietor of the said shop was Gopal Das father of the plaintiff No 1 till his life time and after his death to which about a year nine months and half have passed the plaintiff No 1 as survivor became and is the proprietor of the said property
 This is an extremely important admission
This admission was made after the death of Gopal Das
Therein Debi Prasad not only admitted that Shyam Behari Lal was the son of Gopal Das he further admitted that he became the proprietor of the concern by survivorship
This could have only happened if Shyam Behari Lal had been adopted by Gopal Das
A 352 and 356 are two applications made for registration of a firm under the 
The first application was made on March 26 1936
It was returned with some objection and the second application was made on May 4 1936
Both these applications bear the signature of Debi Pradsad as Well 110 as Shyam Behari Lal
In those applications it was stated that Shyam Behari Lal had succeeded as a partner of the firm whose registration was sought in the place of his father Gopal Das who had died
A 358 is an application for transfer of shares made to the Banaras Cotton  Silk Mills Ltd by Debi Prasad
Thereunder he sought to transfer his 100 shares to Shyam Behari Lal whom he described in his application as the son of Gopal Das
Similar avertments were made in Exh
A 359
A 262 656 657 and A 276 are the statements made by the relations of Shyam Behari Lal and Debi Prasad wherein Shyam Behari Lal was described as the son of Gopal Das
A large number of documents have been produced to show that friends relations and even strangers were treating Shyam Behari Lal as the son of Gopal Das
The documents produced before the court conclusively prove that right from 1907 till 1946 Shyam Behari Lal wag treated as the son of Gopal Das
This continuous and consistent course of conduct on the part of Debi Prasad Gopal Das and others affords a satisfactory proof of the fact that Shyam Behari Lal must have been the adopted son of Gopal Das
No other reasonable inference can be drawn from the material on record
Mr Desai appearing on behalf of the appellants contended that we should not accept the adoption pleaded firstly because it was unlikely that Gopal Das would have taken a child in adoption as far back as 1892 when he was only 32 years of age secondly the story that an one day old child was taken in adoption when the family must have been in pollution must be rejected as being repugnant to Hindu notions and lastly in a decree of 1910 Shyam Behari Lal was described as the son of Ram Das his natural father
We are unable to accept these contentions
It is in evidence that Gopal Das had lost three children even before 1890
Evidently he had lost all hopes of getting a natural son
Further it is not necessary to speculate in the face of the documentary evidence referred to earlier why Gopal Das should have taken a son in adoption when there was every possibility for him to get a natural son
Coming to the question of adoption on the very day Shyam Behari Lal was born that plea rests on hearsay information
There is no positive evidence before us as to when exactly Shyam Behari Lal was adopted
From the evidence of DWs
10 and 15 it is clear that he must have been adopted very soon after his birth
That is the best that can be said on the basis of the evidence
That a art custom differs from place to place and from community to community
It is true that in a decree made in 1910 Shyam Behari Lal was described as the son of Ram Das
But in the very next year in another decree he was 111 described as the son of Gopal Das
We do not think that the evidence afforded by that solitary document showing Shyam Behari Lal as the son of Ram Das can outweigh the other evi dence which is both satisfactory as well as voluminous
On an appreciation of the entire evidence on record we are in agreement with the High Court s conclusion that Shyam Behari Lal was the adopted son of Gopal Das and there is nothing to show that the said adoption was invalid for any reason
In view of this conclusion it is unnecessary to consider the other contentions raised in the appeal
In the result this appeal fails and the same is dismissed with costs
YP Appeal dismissed


Summary:
The appellant filed a suit in 1946 claiming to be the nearest heir to his maternal uncle G who died in 1934
S defendant No 1 the predecessor of the respondents resisted the suit on the ground that he had been adopted by G on the very day he was born in 1892
Close relations of the wife of G deposed that after the birth of S the wife of G took him to her paternal home where Paon Pheri ceremony was performed as was customary in that family
The application for admission to the school recited that S was the son of G and it was signed by G G deposed before courts that S was his son
S filed a nomination paper proposed by G mentioning that his father was G
In income tax assessment which proceeded on the basis that G and S formed a HUF of which G was the karta the professional income of S was added
Then there were admissions of the appellant in Courts after the death of G that S was the proprietor of the firm of G
In other application for transfers the appellant described S as son of G
But there was a decree of a Court in 1990 where S was described as son of his natural father
The trial court decreed the suit but the High Court reversed that decree
The High Court held on the evidence that S was validly adopted by G though S had not been able to establish the custom pleaded by him nor was he able to adduce any satisfactory evidence about the actual adoption but he has produced considerable documentary evidence to show that G was treating him for over a quarter of century as his son then there was also plenty of reliable evidence to show that close relations including the appellant treated S as the son of G both during the life time of G and also thereafter till about the time the suit was instituted
HELD  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
In order that an adoption may be valid under the Hindu law there must be a formal ceremony of giving and taking
This is true of the regenerate castes as well as of the Sudras
Although no particular form is prescribed for the ceremony the law required that the natural parent should hand over the adoptive boy and the adoptive parent must receive him the nature of the ceremony varying according to the circumstances
105 A D Although the person who pleads that he had been adopted is bound to prove his title as adopted son as a fact yet from the long period during which he had been received as an adopted son every allowance for the absence of evidence to prove such fact was to be favourably entertained
The case was analogous to that in which the legitimacy of a person in possession had been acquiesced in for a considerable time and afterwards impeached by a party who had a right to question the legitimacy where the defendant in order to defend his status is allowed to invoke against the claimant every presumption which arises from long recognition of his 102 legitimacy by members of his family
In the case of a Hindu long recognition as an adopted son raised even a stronger presumption in favour of the validity of his adoption arising from the possibility of the loss of his rights in his own family by being adopted in another family
In the absence of direct evidence much value has to be attached to the fact that the alleged adopted son had without controversy succeeded to his adoptive father s estate and enjoyed till his death and that documents during his life and after his death were framed upon the basis of the adoption
106 B F On the evidence S was the adopted son of G and there was nothing to show that the said adoption was invalid for any reason
While considering the question of the proof of adoption pleaded the fact that the suit was filed nearly 54 years after the alleged adoption had taken place must be borne in mind
Therefore naturally it was extremely difficult far the adopted son to adduce any oral evidence in proof of that adoption
Addagada Raghavamma and anr
vs Addagada Chenchamma and anr
2 SCR 933 Lakshman Singh Kothari vs Smt
Rup Kanwar   applied
Rajendrao Nath Holder vs Jogendro Nath Banerjee and ors
14 Moore s Indian Appeals p 67 approved