Civil Appeal Nos
1742 1743 of 1969
Appeals by Special Leave from the Judgment and order dated 12 12 1968 of the Allahabad High Court in RSA No 2777 of 1972
section N Andley Uma Datta and T C Sharma for the Appellant in CA 174269
A P section Chauhan and N N Sharma for Respondent No 1 in CA 174269 and for the Appellant in CA 174369
1000 The Judgment of the Court was delivered by KOSHAL J
The facts giving rise to these two cross appeals by special leave may with advantage be stated with reference to the following pedigree table CHHITAR MAL  ___________________________________________________________     Salag Ram Banshi Dhar Narain Dass Bhagwan Dass  died    issueless          Balu Ram Ram Chander        Tirlok Chand    plaintiff          Rag Vir Ram Nath Bhagirath   Saran defendant Defendant   No 3 No 4 No 5          Devi Sahai Piarye Lal Gopi Nath  died in Defendent   1943 No 2            Damodar Dass Smt Barfi  defendant daughter  No 6  ____________________________________________________     Murli Kewal Ram Govind Jagananth Smt
Chhoti Dhar dies Ram died died died issueless died issueless issueless in 1925 in 1952 issue in 1940 in 1955 in 1952 ____________________________________________________________ The litigation between the parties started with suit No 1912 of 1958 instituted by Tirlok Chand for partition of properties detailed in schedules AB and C forming part of the plaint
His case was that 1001 the property described in schedule A had been acquired by his great grand father Chhitar Mal that the property detailed in schedule B was jointly acquired by Salag Ram s sons Jagannath and Govind Ram the two of whom constituted a joint Hindu family and that the property specified in schedule C had once belonged exclusively to Jagannath son of Salag Ram and that it was from him that it had descended to his widow Smt
Chhoti
Apart from defendants Nos 2 to 6 whose names appear in the pedigree table Banwari Lal who is the appellant before us in Civil Appeal No 1742N of 1969 was arrayed as defendant No 1 and he has been the real contesting defendant whose claim was based on his adoption by Govind Ram grandson of Chhitar Mal and on two registered wills both dated the 25th of September 1950 purporting to have been executed by Govind Ram and Smt
Chhoti respectively
He claimed that the two testators had bequeathed their entire property to him that the property covered by schedule A was acquired not by Chhitar Mal but by Salag Ram and that the one embraced by schedule C had been purchased by Smt
Chhoti with her stridhana and was never the property of her husband Jagannath
He therefore claimed to be entitled to all the properties in suit exclusively for himself it being common ground between the parties that those properties were the subject matter of the two wills
The plaintiff denied the adoption set up by defendant No 1 and challenged the two wills as forgeries
The trial court and the first appellate court found that the property covered by schedule A had been acquired not by Chhitar Mal but by his son Salag Ram
There was no contest in relation to the property embraced by schedule B which was therefore treated to have been acquired jointly by Govind Ram and Jagannath as part of their joint Hindu family assets
In relation to the property detailed in schedule C the trial Court held that it had been acquired by Jagannath but the finding was reversed by the first appellate court which found that the acquisition was made by Smt
Chhoti with funds of her own her husband Jagannath having no interest therein
On behalf of defendant No 1 no evidence was led to prove that he had been given or taken in adoption
The trial court therefore held that the adoption had not been proved
In the will of Govind Ram however there was a recital that defendant No 1 was his adopted son and this recital was considered by the first appellate court to be sufficient to prove the adoption
Both the wills were held to be genuine 1002 and legally valid and the suit was therefore dismissed by the trial court and the first appellate court in toto
In second appeal the High Court upheld all the findings of fact arrived it by the first appellate court except the one relating to adoption
The High Court was of the opinion that the recital in the will of Govind Ram about defendant No 1 being his adopted son was not sufficient to prove the adoption which therefore was held not to have been established
It was further held by the High Court that a half share in the property specified in schedules A and B having descended from Jagannath to Smt
Chhoti as a life tenant only she was not competent to will it away and that the plaintiff along with other members of the family was entitled to succeed to that half share
It was vehemently contended before the High Court that even if the wills be taken to be genuine they would operate only if defendant No 1 was shown to have been validly adopted by Govind Ram because both Govind Ram and Smt
Chhoti had described him as Govind Ram s adopted son and must therefore be presumed to have executed the wills in favour of defendant No 1 by reason of his being the adopted son of Govind Ram
The contention was repelled by the High Court as it had also been by the trial court on the ground that the mention of defendant No 1 as the adopted son of Govind Ram in each of the two wills had been made merely as a description of the devisee and not as a motivation for the execution of either will
Support was found for this view from Ranganathan Chattiar and Another vs Periskaruppan and Another
In the result the High Court accepted the appeal of the plaintiff in part set aside the dismissal of the suit and remitted the case to the trial court for declaring the shares of the parties in the property which descended to Smt
Chhoti from her husband in the light of its the High Court s judgment and for partition of the property accordingly thereafter
Both the contesting parties feel aggrieved by the judgment of the High Court
While defendant No 1 claims in Civil Appeal No 1742 of 1969 the entire property covered by schedules A B and C the plaintiff has filed a cross appeal Civil Appeal No 1743 of 1969 seeking to defeat in toto the claim of defendant No 1 3
We have heard learned counsel for the parties at length
In so before as the findings of fact are concerned they are not open to challenge before us
The first question which learned counsel for the plaintiffs 1003 has re opened before us is whether the two wills were rightly held to be operative in favour of defendant No 1 inspite of the fact that he was found not to have established his character as an adopted son which was the description given to him in both the wills
To this question also we think the High Court gave the correct answer
In this connection reference may be made to the relevant part of Govind Ram s will and the same is extracted below  Shri Banwarilal is the adopted son and heir of the executant
Shrimati Chhoti is the widow of Jagannath Prasad resident of Pilkhuwa Pargana Dasna Tahsil Ghaziabad
Both the persons live along with the executant and render all due service to the executant
Therefore I make the following will That after the death of the executant all my estate movable and immovable with all other goods and household property along with Dharamshala No 160 and one storeyed shop No 157 bounded as given below shall be owned by Shrimati Chhoti widow of Jagannath Prasad occupation shopkeeper resident of Pilkhuwa who shall have no right to sell the estate
She shall have the right to spend for the Dharamshala the income of shop No 157 connected with the Dharamshala
After the death of Smt
Chhoti Banwarilal adopted son and heir of the executant shall be the owner 
Interpreting this document and considering the surrounding circumstances of the case the trial court found that the motive for the execution of the will was not merely the recognition by the testator of his relationship through adoption with the devisee but mainly the existence of feelings of love and affection for him
It was found as a fact that Banwari Lal was living with Govind Ram and Smt
Chhoti that he had served them during their illness and that he was affectionately attached to them so that at the time when the wills were executed there was no one nearer or dearer to Govind Ram and Smt
Chhoti than Banwari Lal
In this view of the matter the failure to establish the stated relationship is not decisive of the point under consideration and as remarked by the High Court it appears that the testator made the will not for the reason that he had in fact and lawfully adopted Banwari Lal but for the reason that he treated Banwari Lal as an adopted son and was moved really by the service which the latter had rendered to him
The relationship mentioned in the will was merely a description of the devisee as understood by the testator who executed the will in favour of the devisee not because of the relationship 1004 brought about by the adoption but by reason of feelings of affection which the devisee had earned by his association and assistance
The only other noticeable point raised on behalf of the plaintiff was that the will executed by Smt
Chhoti must be held to be wholly inoperative in so far as properties detained in schedules A and B are concerned
There is no force in that contention either
One half of the properties mentioned in those two schedules had vested in Smt
Chhoti under the will of Govind Ram which itself declared that Smt
Chhoti would hold them merely as a life tenant and that thereafter they would devolve on defendant No 1
In devising those properties to defendant No 1 Smt
Chhoti did nothing more than carry out the behest of her own testator which behest was good in law and would have been effective even if Smt
Chhoti had made no will in favour of defendant No 1 in respect of the properties acquired by her under Govind Ram s will
On behalf of defendant No 1 the only submission made was that the two wills must be given effect to not only with regard to the properties received by Smt
Chhoti from Govind Ram but also in respect of those which devolved on her as a successor to her husband Jagannath
This submission is also without substance
Jagannath died in 1940 when Smt
Chhoti came into his property on the usual life tenure without any right of a alienation except for necessity or of devise
To the extent that she overstepped her rights in devising Jagannath s property the will transgressed the law and has been rightly held to be inoperative the result being that her reversioners and not her devisee would succeed to Jagannath s share in the properties covered by schedules A and B The situation would certainly have been different if the adoption had been proved for in that case defendant No 1 would have succeeded as the sole reversioner to the estate left by Smt
Chhoti being her husband s brother s son and therefore his nearest and sole heir
And that is why a contention was raised on behalf of defendant No 1 that a valid adoption had been proved and that the finding to the contrary arrived at by two of the courts below was unsupportable
Reference in this connection was made to the recital in the will executed by Govind Ram about defendant No 1 being the adopted son of the devisor and to the oral evidence of Raj Pal DW 2 who attested that will and deposed that defendant No 1 had been adopted by the testator
These two pieces of evidence were considered by the trial court as well as the High Court both of whom regarded the material as insufficient to hold that a valid adoption was proved
The finding in relation to the adoption is a finding of fact which we see no reason to interfere with in the circumstances of the case
The 1005 adoption is alleged to have taken place within about a decade immediately preceding the suit between the parties so that evidence of witnesses who were present at the actual adoption and had seen the giving and taking  would normally have been available
However no attempt was made to produce any such witness nor to explain why no such witness was forthcoming
Different considerations may have prevailed if proof of adoption was required to be submitted to court after a very long period of its having taken place which is not the case here
The statement made by the testator in the will about the adoption is certainly a piece of admissible evidence as observed in Chandreshwar Prasad Narain Singh vs Bisheshwar Pratap Narain Singh cited by learned counsel for defendant No 1 but there is no rule of law or prudence laying down the principle that such a statement must be regarded as conclusive and this was also the view taken in that case
And the burden of proof of adoption was heavy on the defendant
In this connection we may refer to the following passage in Article 512 of Mulla s Hindu Law 14th edition 
But 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 natural succession by alleging an adoption
That onus is particularly heavy where the adoption is made a long time after the date of the alleged authority to adopt  It is true as pointed out by Mulla in a later passage occurring in the same article that when there is a lapse of a very long period between the adoption and its being questioned every allowance for the absence of evidence to prove the factum of adoption must be favourably entertained but then that is not the situation here as we have already pointed out
We are therefore one with the High Court in holding that on the evidence adduced defendant No 1 has not been successful in establishing the alleged adoption
In the result both the appeals fail and are dismissed with no order as to costs
PBR Appeals dismissed


Summary:
G and J were the sons of S son of M
The plaintiff was the grandson of another son of M
In a document purporting to have been executed by G it was stated that defendant No 1 was his G s adopted son and heir and that C his younger brother J s widow and defendant No 1 had rendered services to him in recognition of which he bequeathed properties detailed in the will to C to be enjoyed by her during her life time and that on her death defendant No 1 shall be their owner
The plaintiff in his suit for partition claimed that the properties detailed in Schedule A to the plaint had been acquired by his great grandfather M those in Schedule B were jointly acquired by G and J both of whom constituted a joint Hindu family and those in Schedule C which once belonged exclusively to J descended on his death to his widow C
The plaintiff also challenged the adoption of defendant No 1
Defendant No 1 on the other hand claimed that since he was the adopted son of G the properties bequeathed to him by G s will were his exclusive properties
He also claimed that the properties in Schedule C were purchased by J s widow C with her stridhana that by reason of her will he was entitled exclusively to those properties and that they never belonged to her late husband
The trial court held that adoption had not been proved and that the motive for the execution of the will was not merely the recognition by the testator of his relationship through adoption with the devisee but mainly the existence of feelings of love and affection for him
The first appellate court held that the recital in G s will that defendant No 1 was his adopted son was sufficient to prove the fact of adoption
The High Court on the other hand was of the opinion that the recital in G s will that defendant No 1 was his adopted son was not sufficient to prove the adopted and that the reference to adoption had been made merely as a description of the devisee and not as a motivation for the execution of the will  HELD Defendant No 1 had not been successful in establishing the alleged adoption
a It is well established that 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 natural succession by alleging an adoption
1005 D E b The burden of proof of adoption in this case lay heavily on defendant No 1 which he has not discharged satisfactorily
This is not a case in which the adoption had taken place a very long time the suit was filed
It had in fact taken place within about a decade immediately preceding the suit when witnesses who were present at the ceremony and who had seen the giving and taking would normally have been available
He did not explain why no such witness was forthcoming
1005 A B c The relationship mentioned in the will that defendant No 1 was his adopted son and heir was merely a description of the devisee as understood by the testator
The will was executed not because that relationship was brought about by adoption but by reason of feelings of affection which the devisee had earned by his association with and the assistance rendered to the testator
1003 H 1004 A 2
There is no force in the contention of the plaintiff that the will executed by C must be held to be wholly inoperative in so far as properties detailed in Schedules A and B were concerned because one half of the properties mentioned in these schedules had vested in C under the will of G which itself declared that she would hold them merely as a life tenant and that thereafter they would devolve on defendant No 1
In devising the properties to defendant No 1 C did no more than carry out the behest of her own testator which behest was good in law
1004 A C