Case: Banwari Lal Vs. Tirlok Chand &amp; Others (And Vice Versa)

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 Banwair 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 brought about by the adoption but by reason of feelings of affection which the devisee had earned by his association and asistance.4. 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 detailed 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 Rams will.5. 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 developed on her as a successor to her husband Jagannath. This submission is also without substances. Jagannath died in 1940 when Smt. Chhoti came into his property on the usual life-tenure without any right of alienation (except for necessity) or of devise. To the extent that she overstepped her rights in devising Jagannaths 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 Jaganaths 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 husbands brothers son and therefore his nearest and sole heir. and that is why a contention was raised on behalf of a 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, P.W. 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 adoption is alleged to have taken place within about a decade immediately preceding the suit between the parties so that evidence of witness 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 not 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 v. Bisheshwar Pratab Narain Singh, AIR 1927 Pat 61 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 Mullas 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 along 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, defendant No. 1 has not been successful in establishing the alleged adoption.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]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 Rams will and the same is extracted below :"Shri Banwarilal is the adopted son and heir of the executant. Smt. 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 Dharmshala No. 1/60 and one-storeyed shop No. 1/57 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. 1/57 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 Banwarilal 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 Banwair 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 brought about by the adoption but by reason of feelings of affection which the devisee had earned by his association andhalf 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 Ramsfinding 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 adoption is alleged to have taken place within about a decade immediately preceding the suit between the parties so that evidence of witness 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 not 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 caseis 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, defendant No. 1 has not been successful in establishing the alleged adoption.