JUDGMENT [ENTITY], J.
1. This appeal was filed by plaintiff [ENTITY] against the appellate judgment and decree of the learned District Judge of Jodhpur dated October 21, 1965. [ENTITY] died during the pendency of the appeal and his legal representatives are now on the record.
2. There has been much controversy about the subject matter of the suit and it is necessary to state the facts but before doing so it will be better to mention the genealogy (for genealogy see below) of the parties so as to bring out their relationship.
[ENTITY] | | | [ENTITY] | | | | | | | | [ENTITY] | | | | [ENTITY] | | | | | | [ENTITY] [ENTITY] | | [ENTITY] | | | | [ENTITY] | | [ENTITY] (Plaintiff) | (by adoption) | | | | | | [ENTITY] | [ENTITY] | | [ENTITY] | | | | [ENTITY] (Defendent)
3. [ENTITY], the common ancestor of the parties, was admittedly the "jagirdar" of village [ENTITY]. He was a Purohit and had two sons, [ENTITY] and [ENTITY]. [ENTITY] and [ENTITY] were the grandsons of [ENTITY], being sons of [ENTITY]. The dispute relates to the adoption of [ENTITY] (defendant), a great great grandson of [ENTITY], by [ENTITY]. That adoption was challenged by plaintiff [ENTITY] by this suit on May 2, 1950. It was alleged by him that defendant [ENTITY]'s grandfather [ENTITY] went in adoption to his maternal grandfather [ENTITY] so that he and his descendants ceased to have anything to do with [ENTITY]'s "jagir" or other property, and could not be validly adopted by any of the descendants of [ENTITY] under the law of "mooris-i-ala." It was stated that [ENTITY] instituted a suit for partition against [ENTITY], but compromised it by an agreement (Ex. 1) dated March 21, 1917 under which he got only an allowance of Rs. 7 per mensem for his maintenance and made [ENTITY] the exclusive owner of the rest of the "jagir" and the other property.
It was pleaded that [ENTITY] became a lunatic sometime thereafter, and remained so throughout his life, so that the sum of Rs. V which was deposited by [ENTITY] every month under the aforesaid agreement (Ex. 1) was withdrawn by [ENTITY] or [ENTITY] as his guardians. It was the case of the plaintiff that [ENTITY] was under their influence and was afraid of them, and was not in a position to understand what was good or bad for him. [ENTITY] had no son and his widow adopted the plaintiff on October 14, 1939, under a registered deed of adoption. Thereupon [ENTITY], [ENTITY], [ENTITY] and [ENTITY] got a deed of adoption written regarding the adoption of [ENTITY] by [ENTITY]. That document was presented for registration, but the Registrar held that [ENTITY] was of unsound mind and refused to register it on January 29, 1940. On appeal, the document was sent back to the Registrar, but he again refused to register it by his order dated July 14, 1940 on the ground that [ENTITY] was a lunatic.
[ENTITY] then instituted a suit on September 11, 1940 in the Court of Joint [ENTITY] No. 1 for the compulsory registration of the deed of adoption. The Joint [ENTITY] held on January 4, 1944 that [ENTITY] was a lunatic, appointed Mr. [ENTITY], Advocate, as his guardian ad litem and ultimately dismissed the suit on August 3, 1944. A week thereafter, another deed or adoption (Ex. P. W. 10/1) was got executed by [ENTITY]. It was presented for registration on October 10, 1944 and was registered the next day in spite of the objection of the plaintiff. As [ENTITY] gave himself out to be the adopted son of [ENTITY] on the basis of that document and wanted to take his share in [ENTITY]'s "jagir" and other property, he filed a suit against the plaintiff in the District Court alleging that the plaintiff was not the son of [ENTITY]. That suit was opposed by the present plaintiff on the ground, inter alia, that [ENTITY] was not the validly adopted son of [ENTITY]. Thereafter the plaintiff himself raised the present suit alleging that the deed of adoption Ex. P. W. 10/1 cast a cloud on his rights and there was reason to apprehend that [ENTITY] might withdraw his suit and thereby prevent a trial of the dispute regarding the validity of his own adoption by [ENTITY].
The plaintiff therefore prayed for a declaration that the defendant had no right to the "jagir" and other property of [ENTITY] and his descendants and the deed of adoption in favour of the defendant was illegal and inoperative against him.
4. Defendant [ENTITY] denied the claim altogether. He denied that the plaintiff was the adopted son of [ENTITY] and pleaded that he himself ceased to be the son of [ENTITY] because of his adoption by [ENTITY]. He admitted however that [ENTITY] was their common ancestor and was the "jagirdar" of [ENTITY], but denied [ENTITY]'s adoption by [ENTITY]. It was admitted that [ENTITY] and [ENTITY] were the two descendants of [ENTITY] and that [ENTITY] died in the life time of [ENTITY]. It was alleged that [ENTITY] filed a suit for partition of the property against [ENTITY] which was finally decided on June 29, 1904, and [ENTITY] was held entitled to a half share. The defendant denied that [ENTITY] entered into any compromise with. [ENTITY] or presented it before any Court. In the alternative, it was pleaded that even if any such compromise was proved, it could not have any effect on [ENTITY]'s descendants and came to an end on his death.
At the same time, it was pleaded that after the death of [ENTITY], [ENTITY] became the owner of the entire property. It was denied that [ENTITY] became a lunatic at any time or remained in that state of mind until his death or that [ENTITY] and [ENTITY] withdrew any money because of his lunacy. So also, it was denied that they had any influence on [ENTITY], or that he was afraid of them. It was pleaded that [ENTITY] was able to think what was good or bad for him and that, on the other hand, any deed of adoption executed by [ENTITY]'s widow in favour of the plaintiff under undue influence was not legal and was void and invalid. It was pleaded that [ENTITY] executed the deed of adoption after taking the defendant in adoption of his own free-will and choice, but the Registrar did not register it and the defendant had to file a suit in the Court of Joint [ENTITY] No. 1 for its registration.
A question arose whether it was necessary to appoint a guardian ad litem of [ENTITY] for purposes of that suit and Mr. [ENTITY] was appointed as the guardian until the decision of that question. Ultimately, the suit was dismissed on the ground that it was barred by limitation and it could not have any adverse effect on the rights of the defendant. It was pleaded in paragraph 11 of the written statement that thereafter on August 10, 1944, [ENTITY] took the defendant in adoption and wrote the deed of adoption (Exhibit P.W.-10/1) in his own hand. It was presented for registration and was registered in spite of the objection of the plaintiff. The defendant pleaded that as he wanted to take his share in [ENTITY]'s 'jagir' and other property as the adopted son of [ENTITY], he filed a suit against the plaintiff in the Court of the Civil Judge, and that the plaintiff raised the present suit to bring undue pressure on him although all the points in controversy between the parties could well be decided in his own suit. It was, however, admitted that the "mooris-i-ala" law was binding on the parties.
5. Issues were framed on the points in controversy between the parties. The trial Court decided all of them against the plaintiff and dismissed the suit on October 28, 1959. The plaintiff preferred an appeal and as it has been dismissed by the impugned judgment, he has presented this second appeal.
6. It has been argued by the learned counsel for the plaintiff-appellant that the judgment of the lower appellate Court has been vitiated by several substantial errors of law and procedure. This has not been disputed by the learned counsel for the respondent and, as will appear from what follows in this judgment, this is really so.
7. The most disputed point in this case relates to the question whether [ENTITY] was a lunatic who could not understand what was good or bad for him and could not take any one in adoption so that adoption deed, Exhibit P.W. 10/1 is void and illegal. This was the subject-matter of issue No. 5 and I shall deal with it first of all.
8. It is well settled that every male Hindu, who is of sound mind, may lawfully take a son in adoption: [PRECEDENT] at pp. 434-435 (PC), if he has attained the age of discretion. Soundness of mind is, therefore, an essential requirement of a valid Hindu adoption and has to be proved when necessary.
9. The plaintiff clearly took the plea in paragraph 14 of the plaint that the deed of adoption was inoperative and invalid for the reason, inter alia, that [ENTITY] was a lunatic who could not understand what was good or bad for him and was not, therefore, entitled to take any one in adoption under the law. It was, therefore, necessary for the defendant to prove that [ENTITY] was of a sound mind at the time, when he is alleged to have taken him in adoption. Mr. [ENTITY] has argued that the burden of proving the unsoundness of [ENTITY]'s mind was incorrectly placed on the plaintiff while framing issues Nos. 4, 5 and 7. The issues were framed on October 24, 1958 and the plaintiff made an application on November 19, 1958, objecting that the burden of proof had incorrectly been placed on him. His application was, however, rejected by the trial Court on November 27, 1958. The mistake was pointed out in the Court of first appeal, but I am constrained to say that it also did not appreciate the implications of the question or burden of proof in such cases and unnecessarily involved itself in the question of lucid interval even though it was not pleaded by any of the parties.
10. It is true that every man may reasonably be presumed to be sane; but such a presumption is not made in all cases. Thus in the case of a will, when the testamentary capacity of the testator is a point in issue, the burden of proving the capacity rests on the propounder who cannot rely on any such presumption. It will be enough to make a reference to the following observation in paragraph 819 of Halsbury's Laws of England, 3rd Edn., Vol. 29, in this connection:
"Every man is presumed to be sane until the contrary is proved, and this presumption holds as well in civil as in criminal cases, though in the case of a will it is the duly of the executors or any other person setting up the will to show that it is the act of a competent testator."
The point has been lucidly stated as follows in [ENTITY]'s Treatise on the Law of Evidence, 12th Edn., Vol. I, para 370:
"In all such cases the presumption of sanity holds good to this extent, that if the testamentary instrument was duly and regularly executed, and the terms of it are not unnatural or such as upon the face of the instrument to suggest any unsoundness of mind, and there is no evidence before the Court of any such unsoundness, sanity will be presumed; but if there is evidence before the Court from which unsoundness of mind may be inferred, or evidence on the one side and upon the other, there is no presumption of law which requires the tribunal to find in favour of the instrument unless it is affirmatively satisfied that the testator was of sound mind. The burden of proof throughout is upon the party propounding the instrument. If, however, upon the trial of any such issue, the party opposing the will puts in evidence an inquisition finding the testator to have been a lunatic at a date previous to the making of the will, this evidence shifts the burden of proof to the party who asserts the testators sanity. And, indeed, if it be shown by any evidence that a testator was insane, or subject to delusions at any time previous to the alleged will, or subsequently thereto, the presumption of sanity will be displaced." I have no doubt that this should equally hold good in the case of an adoption, for, as has been stated, soundness of mind is its essential requirement also.
11. It follows, therefore, that as it was specifically pleaded in the plaint that [ENTITY] was a lunatic, and a reference was made to an earlier finding to that effect, which was not specifically denied in the written statement, the trial Court should have realised that the ordinary principle that every person may reasonably be presumed to be of sound mind, could not apply, and it was necessary for the defendant who relied on the adoption to prove that the adopting father was of sound mind at the time of the adoption.
12. The burden of proof in such a case is quite substantial because it is well settled that the evidence to prove an adoption must be sufficient to satisfy the serious onus which rests upon any person who seeks to displace the natural succession by alleging the adoption. The decisional law oh the point is to be found in the pronouncements of their Lordships of the Privy Council and the Supreme Court in [PRECEDENT], [PRECEDENT]; [PRECEDENT]; and Raghavamma v. Chenchamma, AIR 19(34 SC 136. The evidence of adoption should, therefore, be free from all suspicions of fraud and so consistent and probable as to leave no occasion for doubting its truth.
It was, therefore, for the defendant to prove that [ENTITY] was of a sound mind at the time of the adoption and the two Courts below erred in failing to appreciate this requirement of the law. Rut the question is as to what exactly is required to prove the soundness of mind in such cases. The learned counsel for the appellant has made a reference to [SECTION] of the [ACT], but it has been argued by Mr. [ENTITY] on behalf of the respondent that an adoption cannot be said to be a contract and I agree with him that the section is not applicable in terms. Fortunately for me, however, a similar point arose for consideration in [PRECEDENT]. The adoption in that case was disputed and their Lordships of the Privy Council held as follows:
"The question, therefore, will be, not whether certain acts were done which, if unobjectionable in other respects, would have constituted adoption but whether the alleged adopting father was of sufficient capacity at the time to understand the nature and object of those acts, and voluntarily gave an intelligent consent to their performance."
Their Lordships expressed the view that adoption was an act requiring "judgment and reflection", which could not be established without "the clearest and most cogent evidence to establish their validity" so that interested persons may be precluded from ascribing acts to a person in which he would have been the "merely passive instrument to prolong their own gain and authority". The question is whether there is evidence of this nature to prove that [ENTITY] had such capacity at the time of the alleged adoption.
13. To reach a conclusion it is natural to examine the state of [ENTITY]'s mind on the date and time of the alleged adoption. But, strangely enough, the defendant has not stated the date, time or place of his adoption either in the written statement or his deposition. It is also surprising that these particulars have not been stated in the deed of adoption (Exhibit P.W. 10/1) and none of the defence witnesses has stated anything about them. In other words, there is not an iota of evidence on the record to show on what date and time and at what place [ENTITY] adopted the defendant, so that it is impossible to examine whether he had sufficient capacity at the relevant period of time to understand the nature and object of the act of adoption and was in a position to voluntarily take an intelligent part in the adoption or to participate in its ceremonies.
14. A perusal of the written statement shows that the defendant pleaded as follows in para 11 of the written statement:
"Ki tareekh 10-8-44 ko [ENTITY]ji ne prativadi ko unke khole lekar kholapatra likha."
If it was the intention of the defendant to plead that his adoption took place on August 10, 1944, then it must be rejected as false for the simple reason that the defendant has categorically admitted in his statement that he was not with [ENTITY] throughout that day.
15. Moreover, as I shall presently show by reference to the past history of the litigation, there was a serious dispute until August 3, 1944, about the soundness of [ENTITY]'s mind and his capacity to take [ENTITY] in adoption, and the fact that [ENTITY] is alleged to have taken the defendant in adoption in the teeth of that controversy barely a week thereafter on August 10, 1944, creates a strong suspicion regarding the validity of the adoption.
16. As has been stated, it was not denied in the written statement that [ENTITY] executed a deed of adoption on an earlier occasion also, in favour of defendant [ENTITY] and presented it for registration, but the Registrar refused to register it by his order Exhibit 2 dated January 29, 1940, holding that the executant appeared to be a lunatic. The matter was remanded by the [ENTITY] to the Registrar for recalling [ENTITY] and deciding the matter afresh. The Registrar did so. He examined [ENTITY] and passed order Exhibit 3 dated July 14, 1940. It was stated in that order that [ENTITY] no doubt appeared to be a bit better, but that while at one time he talked like a sane man and gave relevant replies to the questions put to him, he fell into a reverie and was completely lost to the world at the next moment and could not understand the simplest possible question. It was further stated that he took an unreasonably long time and gave partly incorrect answers to the simple questions as to who was the person he was adopting and whether he was married or unmarried.
The Registrar, therefore, refused to register the document. A suit was then brought on September 11, 1940, for the compulsory registration of the deed of adoption in the Court of Joint [ENTITY] No. 1 which, it is admitted before me, was a regular Civil Court of competent jurisdiction at that time. A written statement (Exhibit 13) was filed in that suit by Mr. [ENTITY] on behalf of [ENTITY] admitting the claim, but its authority was challenged and the learned Chief Justice made order, Exhibit 15, on August 16, 1941, stating that the matter did not appear to be "absolutely clear". He observed as follows:
"What did the defendant mean by saying that he was an M.A. in English when he did not understand even a simple sentence in that language?"
The learned Chief Justice therefore examined the matter further and made order, Exhibit 18, on December 4, 1941, in the exercise of his revisional powers for the framing of an issue on the question whether [ENTITY] was of an unsound mind and, therefore, incapable of protecting his interest in the suit. He directed the trial Court to decide the issue after recording the necessary evidence and appointing a provisional guardian ad litem for the purpose of that enquiry.
16-A. Joint [ENTITY] No. 1, who was trying the suit for compulsory registration, carried out that order of the Chief Court and recorded statement Exhibit 5 of [ENTITY] on December 14, 1943. In that statement, [ENTITY] stated his own age to be 65 years and that of his mother as about 50 years. When the mistake was pointed out to him., he attempted to correct it by saying that his mother might be 70 years old. He also gave the impression that his mother was alive at that time and was living with him, although she had admittedly died much earlier. The Joint [ENTITY], therefore, made order Exhibit 4 on January 4, 1944, after examining the medical experts Dr. [ENTITY] and Dr. [ENTITY]. He reached the conclusion that he had no hesitation in holding that [ENTITY] was not of sound mind and capable of protecting his interests in the suit. He formed the impression that [ENTITY] had been tutored on the question relating to the dispute and looked like a "frightened animal".
A revision petition was filed against the order of the Joint [ENTITY], but it was dismissed in limine by order, Exhibit 6, of the Chief Justice dated January 31, 1944 and Mr. [ENTITY] was appointed [ENTITY]'s guardian on May 11, 1944, under order Exhibit 21 to defend him in the suit for the compulsory registration of the deed of adoption. That suit was thereafter dismissed on August 3, 1944, by judgment Exhibit A-2 of the Joint [ENTITY] as he held that it was barred by limitation. It is significant that an argument was made before him, on the basis of an earlier decision of the Jodhpur Chief Court reported in [PRECEDENT] that in spite of the bar of limitation, it was open to a Court, in a proper case, to pass a decree for specific performance by execution and registration of a fresh document in the exercise of its equitable jurisdiction.
The argument was rejected by the Court on the ground that it had found it as a fact that the defendant, who was the executant of the deed of adoption, was of unsound mind which fact was sufficient to dissuade it from passing a decree for specific performance. It is not disputed that this decision was allowed to become final, so that there is clear evidence on the record to show that up to August 3, 1944, a competent Civil Court had taken the view that [ENTITY] was a man of unsound mind and the deed of adoption executed by him could not be registered.
17. A second deed of adoption (Exhibit P.W. 10/1), which is the subject-matter of the present suit, was, however, written out on August 10, 1944, one week thereafter, and even though it was registered on October 11, 1944, the fact remains that, to say the least, there was at that time sufficient evidence to show that [ENTITY] was a man of unsound mind. It was not, therefore, possible to raise any presumption of sanity in his favour. On the other hand, as would appear from the following observation in para 820 of Halsbury's Laws of England, 3rd Edn., Vol. 29, it will be presumed that the mental disorder continued thereafter:
Where a person has been proved or is admitted to have been so mentally disordered as to be incapable for purposes of contract or disposition, the law presumes such a condition to continue until it is proved to have ceased; and the burden of proving recovery or a lucid interval, as the case may be, lies on the person alleging it. The evidence to prove a recovery or a lucid interval must be as strong and demonstrative of the fact as when the object is to prove mental disorder."
There is no reason why this rulo of evidence should not apply equally in the case of an adoption. But as it is, it is not the case of the defendant that [ENTITY] made any recovery or that lie executed the deed of adoption in a lucid interval, and there is also no evidence at all to this effect, so that it will be fair and reasonable to presume that the mental unsoundness of [ENTITY] continued to persist.
18. Reference may, In this connection, be made to [PRECEDENT], which was also a case of adoption. The adopliug father was found a lunatic under [ACT], and although their Lordships rejected the argument that the effect of the order appointing a manager of the properties of the lunatic was to incapacitate him from making the adoption until the order was set aside, they he'd that in such a case there was a presumption that he continued to be ot unrourd mind until the contrary was shown and that if an adoption was made by such a person, the onus was on those who asserted it to prove that he was of sound mind when he made the adoption. A similar view has been taken in [PRECEDENT] and Mohanlal [ENTITY]gopal v. Vinayak Sadasheo, AIR 1941 Nag 251.
19. It was, therefore for the defendant to prove that the mental disorder of [ENTITY] ceased to exist on August 10, 1944, when he is said to have executed deed of adoption Exhibit P.W. 10/1. But there is no evidence at all to that effect.
20. All that has been argued is that the Registrar registered the document on October 11, 1944, after making the necessary enquiry about the soundness of the executant's mind and that his endorsement should be sufficient to prove the recovery of [ENTITY] as the endorsement fulls within the purview of [SECTION] of the [ACT] and all its contents, including the opinion of the medical expert, are admissible in evidence.
21. It is true that an endorsement of the nature contemplated under [SECTION] of the [ACT] is admissible in evidence for the purpose of showing that the executant was a person of sound mind according to the opinion of the Registrar, but, as has been held in [PRECEDENT], it does not shift the burden of proof in regard to the factum of execution in a sound state of mind to the other party. Moreover, there is no force in the argument of Mr. [ENTITY] that this Court should read in evidence that part of the order of the Registrar in which he has made a reference to e certificate of Dr. [ENTITY] and its contents. It has not been disputed before me that Dr. [ENTITY] was alive during the course of the trial, and it was, therefore, necessary for the defendant, if he wanted to rely on his opinion, to lead direct out evidence under [SECTION] of the [ACT]. As this was not done, it is not possible for me to consider the opinion of Dr. [ENTITY] referred to in the Registrar's endorsement for that would be the violative of the rule excluding hearsay evidence. Such a view may operate harshly in certain cases, but it is embodied in the law and has to be observed. I may refer here to the following observation in para 571 of [ENTITY]'s Treatise ofl the Law of Evidence, 12di Edn.:
"It cannot, however be denied that rule excluding hearsay evidence, though in general admirably calculated for trials before popular tribunals, may in many instances work considerable injustice. For example, on a question respecting the competency of a testator, the conduct of his family, or relations taking the same precautions in his absence as if he were a lunatic, or his election in his absence to some high and responsible office, or the conduct of a physician who permitted him to execute a will all these, when considered with reference to the matter in issue, are mere instances of hearsay evidence, mere statements expressed in the language of conduct instead of the words, and, consequently, they are inadmissible in a Court of justice, although in the ordinary transactions of life they would deservedly be considered as cogent moral proof."
In [PRECEDENT], such evidence has been hold to be the "worst form of hearsay evidence". Similarly in [PRECEDENT], the certificate of the doctor was held to be inadmissible in evidence. This is also the view taken in [PRECEDENT]. The reason is that what was inadmissible in evidence could not become admissible simply because it was incorporated or mentioned in an endorsement like the one envisaged for purposes of [SECTION] of the1 [ACT].
22. It follows, therefore, that the Registrar's endorsement on document Exhibit P.W. 10/1 was not sufficient to displace the presumption that the unsoundness of [ENTITY]'s mind continued at the time when the document is said to have been executed by him.
23. That this was really so, will appear from the subsequent events as well. A suit was raised by the present plaintiff. [ENTITY] and [ENTITY] in the Court of Joint [ENTITY] No. 2 against [ENTITY] for the recovery of some property of the "Jagir" village. The Joint [ENTITY] held in his judgment Exhibit 20 dated April 4, 1945, with reference to an issue regarding the un-soundness of [ENTITY]'s mind and the claim of [ENTITY] to act as his next friend, that [ENTITY] was not a lunatic although he was certainly below the average. The matter went up in appeal to the Court of the Judicial Superintendent, who decided it by his judgment Exhibit 22 dated November 8, 1945. On a consideration of the entire evidence, that Court reversed the finding of the Joint [ENTITY] and held that plaintiff [ENTITY] was of an unsound mind and plaintiff [ENTITY] was entitled to file the suit as his next friend. It is, therefore, quite apparent that a few months after the alleged execution of adoption deed, Exhibit P.W. 10/1, a competent Civil Court again held that [ENTITY] was a man of unsound mind.
A second appeal was preferred to the High Court, and a dispute arose there regarding [ENTITY]'s legal representative on account of his death. The matter was referred to the District Judge who gave his report Exhibit 10 on July 6, 1948. He also took the view that [ENTITY] was incapable of forming a rational judgment as to the effect of the adoption deed executed by him and held that [ENTITY] was not entitled to substitution as his legal representative on its authority. When the report was received by the High Court, it made order Exhibit A-1 on August 26, 1948, which however left open the question of the correctness of the finding of the District Judge contained in his report Ext. 10 for the matter was disposed of on another ground. The fact, however remains that even as late as July 6, 1948, the District Judge took the view that [ENTITY] was a man of unsound mind who could not validly take any one in adoption,
24. I may make it quite clear that I have not relied on these subsequent events for the purpose of deciding the state of [ENTITY]'s mind at the time when he is said to have executed the deed of adoption Exhibit F.W. 10/1, but I have referred to them, merely to show that in another case there was a similar dispute and controversy. I have already dealt at length with the documentary evidence which has left me in doubt that the Courts of law had taken the view up to as late a date as August 3, 19-14, that [ENTITY] was a man of unsound mind, and the presumption that he continued in that state of mental disorder is quite justified when there is no plea or evidence of recovery and it is nobody's case that the deed of adoption was executed in a lucid interval.
25. Reference has, however, been made to the parol evidence on the record and I may examine it as well.
26. [ENTITY], D.W. 9, has stated that [ENTITY] wrote document Exhibit P.W. 10/1 in his presence and at his house, and that he was not a lunatic. The witness, however, admitted that [ENTITY] lived jointly with him for a period of about 20 years and that he (witness) himself purchased the stamp paper on which document Exhibit P.W. 10/1 was written. The witness claims that he attested it at a time when no other witness was present. [ENTITY], however, admitted that there was litigation between him and the plaintiff for the last 20 or 25 years and I have no doubt that he is a highly interested witness. Besides, he had to admit during the course of the cross-examination that he was present with [ENTITY] when the document was presented for registration, and there is evidence to show that he was with him on every important occasion. I do not, therefore, find it possible to rely on the statement of this witness. Then there is the statement of [ENTITY], D.W. 2. He also claims to have attested document, Exhibit P.W. 10/1 at the instance of [ENTITY], and much to the same effect is the statement of [ENTITY], D.W. 7.
A question arose in my mind whether these witnesses really attested the document at the instance of [ENTITY]? As Dr. [ENTITY], D.W. 10, was also produced as a witness to prove the attestation., I have examinee his statement carefully. Even though Dr. [ENTITY] admitted that he was a friend of defendant [ENTITY], he frankly stated that he attested the document at the instance of defendant [ENTITY], and I am not inclined to place reliance on the statements of [ENTITY] and [ENTITY] to the contrary. The attestation of the document was, therefore, quite unreliable. Moreover, Dr. [ENTITY] examined [ENTITY] only for 15 or 20 minutes on the date when he attested the document and never had any occasion to see him earlier. He could not even remember whether he questioned [ENTITY] about his previous history and he admitted that he might have considered two or three "points" to examine his mental alertness. Any opinion based, on such perfunctory examination cannot inspire confidence.
The statement of Mr. [ENTITY], D.W. 6, is quite useless because he talked to [ENTITY] only once or twice and was hardly in a position to express any opinion about the soundness of his mind. The rest of the evidence has not been relied on before me. It would thus appear that the parol evidence of the defendant is quite unsatisfactory. At any rate it does not serve the purpose of rebutting the presumption regarding the continuance of [ENTITY]'s unsoundness of mind and cannot be said to be strong and demonstrative evidence of recovery.
27. The plaintiff has examined his witnesses to prove the mental incapacity of [ENTITY], but it is hardly necessary to read it here in view of the overwhelming documentary evidence mentioned above. Even a reading of Exhibit P.W. 10/1 shows that it suffers from certain inherent defects. For instance, it does not state the date, time or place of the alleged adoption. So also, mere is no mention of any ceremony of adoption or the consent of the natural father. It is, therefore, difficult to take the view that Exhibit P.W. 10/1 is at all a deed of adoption, and it may even be said with some justification that it has no evidentiary value beyond furnishing an admission of [ENTITY] that he had taken the defendant in adoption on some earlier date or time. There is also no evidence on the record to show that it was a contemporaneous document. [ENTITY] used to live with [ENTITY] and it has been admitted by [ENTITY] that he never lived with his adoptive father after the adoption. There is nothing in Exhibit P.W. 10/1 or in the other evidence on the record to show why such a helpless man should have thought of taking a son in adoption. All these are inherent defects in the document and they cannot be ignored merely because [ENTITY] has stated that the document was written by [ENTITY] in his own handwriting and some witnesses claim to have attested it.
28. At any rate I have no hesitation in holding that the evidence on the record is not sufficient to prove that [ENTITY] was of sufficient capacity at the time to understand the nature and object of the act of adoption and that he voluntarily took an intelligent part in such an act which requires the exercise of both judgment and reflection. The standard of proof mentioned in [ENTITY] case, [PRECEDENT] has not, therefore, been furnished. It is quite apparent that some interested persons tried to over-reach the findings of the Courts of law regarding [ENTITY]'s incapacity to make a valid adoption and ignored even the latest pronouncement of the Joint [ENTITY] dated August 3, 1944, in Exhibit A-2 by bringing about the execution of a second document (Exhibit P.W. 10/1) barely a week thereafter. It is only reasonable that the infirmities so unscrupulously brushed aside by those persons should have overtaken them completely.
29. Before leaving this point of controversy I may as well refer to the argument of Mr. [ENTITY] that there are various degrees of insanity and that a person may have sufficient amount of reason still left in him which may enable him to understand the ceremonies of adoption and take an intelligent part in them, and that such a state of mind, when proved, would be sufficient to uphold an adoption. The learned counsel has placed reliance on [PRECEDENT], to support his argument. But that case dealt with the question of the validity of a Hindu marriage and cannot be said to be directly in point. Even so, the test laid down in that case for the validity of a Hindu marriage was that the person concerned should have sufficient amount of reason still left in him to enable him to understand the ceremonies of marriage and take an intelligent part in them. But if this test is applied to [ENTITY]'s case, it will not avail the defendant for there is no evidence at all to show that [ENTITY] understood the ceremonies of adoption and took an intelligent part in them.
30. There is, therefore, no escape from the conclusion that the evidence on the record does not prove that [ENTITY] was a man of sound mind at the time of the alleged adoption or when he executed document P.W. 10/1. The learned District Judge committed a serious error of law in taking the view that, in the facts and circumstances of this case, the onus of proving that [ENTITY] was a man of unsound mind lay on the plaintiff. The learned Judge appears to have realised that this would not be the correct legal position, for he tried to retrieve the error in the later part of his judgment. But I am constrained to say that he committed another serious error of law in going into the question of lucid interval while considering the question of [ENTITY]'s mental recovery ignoring the fact that no such plea had at all been taken in the written statement, there was no issue in regard to it and the parties did not lead any evidence on it so much so that the defendant did not cross-exaimne any of witnesses of the plaintiff for the purpose of proving the lucid interval. The finding of the learned District Judge cannot, therefore, be upheld. I have no hesitation in setting it aside and in holding that the defendant has not succeeded in proving that [ENTITY] was of a sound mind when he is alleged to have taken [ENTITY] in adoption.
31. The next point for consideration is whether [ENTITY], grandfather of defendant [ENTITY], went in adoption to his maternal grandfather [ENTITY]. This was the subject-matter of issue No. 1 and, as I shall presently show, the plaintiff has led sufficient documentary evidence to prove that this was so.
32. [SECTION] dated February 28, 1900, is an important document in this connection. It is a certified copy of a copy of a "kai-fiat' 'of [ENTITY] and it shows that there was an ancestral grant in favour of [ENTITY]. The document states that [ENTITY] had reported that his "father" [ENTITY], who was drawing Rs. 14-15-3 per month from the treasury, had died and that his name may be substituted in his place. An order was made that since the grant was ancestral and "there had been villages in their family in the past", [ENTITY]'s name may be substituted in the place of [ENTITY] and the allowance paid to him. The document has been proved by the statement of the plaintiff. It is, therefore, quite sufficient to prove that [ENTITY] got the allowance on a voluntary representation that he was the son of [ENTITY] and because of the acceptance of the correctness of that representation by the State Government. The document dates back to 1906 and furnishes satisfactory evidence that [ENTITY] had gone in adoption to his maternal grandfather.
33. An objection has, however, been raised that [SECTION] is the certified copy of a copy and cannot be admissible in evidence. A perusal of the record shows however that there is 110 substance in this objection. Plaintiff [ENTITY], who proved and produced the document, clearly stated that what he produced was the copy of the odrer granting the allowance to [ENTITY], and no objection was taken that it was not a copy but a copy of a copy. A perusal of the record explains why such an objection was not raised at that time. A certified copy of the "kaifiat" was then available in the file of [CASE NUMBER] between [ENTITY] and [ENTITY] on the one hand and [ENTITY] on the other. [SECTION] was prepared from that copy, and it may well be that while the certified copy was referred to during the course of the evidence, the mark of exhibit was placed on the certified copy of the copy as a matter of convenience.
At any rate there is no doubt that the parties knew that the certified copy was available in the connected file, and that appears to be the reason why no objection was made about the admissibility of [SECTION]. If an objection had then been raised, the plaintiff would easily have got the certified copy marked as an exhibit and that mark would not have been placed on the certified copy of the copy. The defendant cannot, therefore, be allowed to raise the objection at a later stage and I may refer in this connection to [PRECEDENT], which was based on a decision of their Lordships of the Privy Council in [PRECEDENT]. It was hold in that case in somewhat similar circumstances that a copy of a copy would be sufficient evidence and any objection regarding its admissibility should he deemed to have been waived because, if it had been raised, it would have been perfectly possible for the party concerned to have prayed for the very copy of the document which was on the record to be taken and marked as an exhibit.
A similar view has been taken in [PRECEDENT]. I have no doubt therefore that an objection as to the form of the secondary evidence cannot be allowed to be raised when it was not taken at the time when it was offered at the trial, and the learned Judge of the lower appellate Court undoubtedly committed a serious error of law in excluding such an important piece of evidence from consideration.
34. The next important document is Ex. 9. It is a certified copy of the application of [ENTITY], father of defendant [ENTITY], by which he applied for the grant of the allowance of Rs. 14/15/3 to him because of the death of his father [ENTITY]. It will be recalled that [ENTITY] had secured the same allowance on the death of his father [ENTITY] under document Ex. 8. In application Ex. 9 also, [ENTITY] was stated to be the grandfather of [ENTITY]. It is another important piece of evidence which proves that [ENTITY] had gone in adoption to [ENTITY]. The learned District Judge failed to notice that the document had been proved by the plaintiff and had not been rebutted and he therefore committed another serious error of law in leaving it out of consideration.
35. Then I come to document Ex. 14, It is the certified copy of the proclamation for sale of the property of [ENTITY] dated November 26, 1933 and in it [ENTITY] has been mentioned as a "[ENTITY]" and not a "Purohit", so that it is also evidence of the fact that [ENTITY] had ceased to belong to the family of [ENTITY]. Another connected document is Ex, 7 dated Decem-be 14, 1933. It is the certified copy of the receipt by which the sale proceeds were deposited in the Court. In it also [ENTITY] has been mentioned as a "[ENTITY]" and the document has been proved to relate to the defendant's father by the statement of the plaintiff.
36. The above documentary evidence is quite sufficient to prove the adoption of [ENTITY] by his maternal grandfather [ENTITY], but I shall refer to the parol evidence also.
37. [ENTITY] P. W. 1 is the natural father of the plaintiff. He was 81 years old when his statement was recorded on December 6, 1958, and has stated that [ENTITY] was taken in adoption by [ENTITY] before he (witness) attained the age of discretion. This shows that the adoption took place some time before 1895. Being a close relation, [ENTITY] had special means of knowledge on the subject and his statement that [ENTITY] performed the funeral rites of [ENTITY] and [ENTITY] celebrated the marriage of [ENTITY]'s son [ENTITY] at his own house and the members of the "[ENTITY]" family participated from the paternal side in that marriage, lends support to the documentary evidence mentioned above. Then there is the statement of [ENTITY] P. W. 5 about the adoption. He has further stated that [ENTITY] lived with his maternal grand-lather, and so also his sons.
38. In rebuttal Mr. [ENTITY] has invited my attention to certain portions in the statements of [ENTITY] P. W. 1, [ENTITY] P. W. 2 and [ENTITY] P. W. 11 for the purpose of showing that [ENTITY] son of [ENTITY] and [ENTITY] lived in [ENTITY]'s house, and it has been argued that this could not be so if [ENTITY] had gone in adoption to [ENTITY]. But the argument is futile because it has been proved by Exs. 14 and 7 that [ENTITY]'s house had been sold in execution of a decree in 1933 and it is therefore not surprising that his descendants were allowed to live in [ENTITY]'s house in such circumstances. [ENTITY] D. W. 1 and [ENTITY] D, W. 9 have denied the adoption of [ENTITY], but they are highly interested witnesses and their testimony cannot be considered to be sufficient to rebut the documentary evidence mentioned above.
39. It has to be remembered that the adoption of [ENTITY] took place near about 1895, while the dispute in regard to it was raised after the institution, of the present suit on May 2, 1950 i. e. some 55 years later. It has been held in somewhat similar circumstances in [PRECEDENT], that every allowance for the absence of evidence to prove the adoption should be favourably entertained in such cases. While therefore this is a case in which one cannot be expected to give direct parol evidence of the adoption, the documentary evidence is quite sufficient to prove that [ENTITY], grandfather of the defendant, went to adoption to his maternal grandfather [ENTITY]. The learned Judge of the lower appellate Court committed an error in reaching a contrary decision and the error arose because, he did not correctly read documents Exs. 7 and 14 in evidence and ruled out Exs[SECTION] altogether. He also committed the mistake of insisting on evidence regarding the ceremony of giving and taking of the boy in adoption in the case of such an old adoption.
40. Defendant [ENTITY] is the grandson of [ENTITY] and the next question for consideration is whether he could be lawfully taken in adoption by [ENTITY]. This was the subject-matter or issues No. 1 (b) and 2. Its answer depends on the provisions of the [ACT]. Same controversy was raised before me whether the Rules could apply to the present case because the parties are not [ENTITY]. But I need not go into the controversy in any detail for the point has been considered and answered by a Division Bench of this Court in [PRECEDENT]. In that case also, the parties were not [ENTITY] and the question arose whether the Rules were applicable to them. After considering the matter from all points of view this Court held that the Rules applied to [ENTITY] and not merely to [ENTITY] as such because they were meant to operate with jrespect to grantees of "jagirs' from the State irrespective of their caste. It was further held that it had been satisfactorily proved that the law relating to adoptions in the case of "jagirdars" was laid down in the [ACT] and according to those Rules, the principle of "mooris-i-ala" applied to such adoptions so that no person outside the line of the original grantee could be recognised as heir.
Besides, it will be recalled that the defendant clearly admitted in the written statement that the "mooris-i-ala" law was binding on the parties. It follows therefore that as [ENTITY] went away in adoption to his maternal grandfather [ENTITY], he ceased to belong to the line of the original grantee [ENTITY], and his grandson [ENTITY] could not be taken in adoption by [ENTITY] so as to affect the succession to the "jagir." Since such an adoption has been alleged and it has been claimed that it affected [ENTITY]'s "jagir", it must be rejected as invalid according to the law then in force in the Jodhpur State.
41. It now remains to consider whether [ENTITY] ceased to have any share in [ENTITY]'s property by virtue of document Ex. 1 dated March'21, 1917. This was the subject-matter of issue No. 3.
42. A perusal of Ex. 1 shows that [ENTITY] brought a suit for partition against [ENTITY] and it was ultimately agreed that while [ENTITY] would continue to reside in the same property in which he was residing earlier ana would get Rs. 7 per month for his maintenance, he would have no other claim to the suit property and that defendant [ENTITY] would take its income as well as the income of the village and the rent. This agreement was verified by the Court, which further directed that it should be acted upon by the parties. It was therefore a binding arrangement and the learned Judge of the lower appellate Court committed an error of law in rejecting it altogether. All the same it appears to me that the arrangement referred to in the document was for the convenient management of the property and the distribution of [ENTITY]'s share of the income of the "jagir" and the other property and it could not be interpreted as a document terminating the ownership of [ENTITY] in the property which was the subject-matter of the compromise.
43. The upshot of the above discussion is that the plaintiff is entitled to succeed in his claim in the suit. The appeal is therefore allowed, the Judgment and decree of the lower appellate Court are set aside and it is declared that deed of adoption Ex. P W. 10/1 in favour of defendant [ENTITY] is invalid and inoperative against the plaintiff and that [ENTITY] has no right to the "jagir" and the other property of [ENTITY] and his descendants. The appellant will be entitled to his costs throughout.