Case: Smt. Shanti Bai Vs. Smt. Miggo Devi and Others

asked her to adopt the third respondent. That, we are afraid, is rather difficult to believe. It is also strange that if in the middle of January when the appellant came to Nagpur with her sisters son, Kedar Nath stated that he would to take the appellant sisters son in adoption, but that he would adopt the third respondent, why should he have waited till one day prior to his death to authorise the appellant to take the third respondent in adoption. We have already pointed out above that it was nobodys case that Kedar Nath was so seriously ill on February 16, that he apprehended that he might die on the next day. Then why should he have thought of giving authority to the appellant to adopt the third respondent on the night of February 16, he could have himself made the adoption on the next day. It is also difficult to understand why Kedar Nath who was lying ill even in the month of January should not have mentioned anything in his will about the adoption of a son to him, if he was thinking of taking a son in adoption. The entire story of Kedar Nath giving authority to the appellant to adopt the third respondent on the night of February 16, 1944 appears to be an afterthought and we cannot accept the same.7. We may point out that even the High Court felt that the evidence of Parmanand Chobey, Nawal Kishore and the second respondent was not sufficient to establish that authority had been given to the appellant by Kedar Nath to adopt third respondent. The High Court observed that "had the matter rested there; it would undoubtedly have been difficult to hold that the appellant had been authorised by her husband to make the adoption." But the High Court took the view that the subsequent conduct of the appellant in going through the ceremonies of adoption, executing deed of adoption reciting that she had been authorised by her husband to make the adoption and making an appointment of herself as guardian of the third respondent led to the irresistible inference that she had been authorised by Kedar Nath to adopt the third respondent. We find it difficult to agree with the reasoning of the High Court. It is not doubt true, as concurrently found by the learned trial Judge and the High Court, that the appellant went through the ceremonies of adoption and executed a deed of adoption containing a recital that Kedar Nath had expressed his desire that the appellant should adopt the third respondent and also made an application for appointment of herself as the guardian of the third respondent. But we do not think that these circumstances are sufficient to establish the giving of authority by Kedar Nath to the appellant to make the adoption of the third respondent. There is nothing to show that the appellant was any time aware that she could not make a valid adoption without the authority of her deceased husband Kedar Nath. It is indeed difficult to believe that an uneducated rustic woman like the appellant would be conversant with the requirement of the Banaras School of Hindu Law that an adoption cannot be made by a Hindu widow without the authority of her deceased husband. It is quite possible - we would even say, quite certain - that the appellant went through the ceremonies of adoption under the impression that what she was accomplishing was a valid act of adoption and in these circumstances, to conclude from the factum of adoption that authority must have been conferred upon her by Kedar Nath to adopt a son would be long jump in the argument which we cannot take. The deed of adoption undoubtedly contained a recital that Kedar Nath at the time of his illness expressed his desire that the appellant should adopt the third respondent, but significantly enough the deed of adoption does not state to when this desire was expressed. Nor does it state that the second respondent and his wife agreed to the proposal made by Kedar Nath and thereafter Kedar Nath told that appellant to adopt the third respondent. On the contrary what the recital says is that in obedience to the last desire of Kedar Nath, the appellant requested the second respondent to give the third respondent in adoption and the second respondent agreed to this request. Moreover even if this recital was read over to the appellant before she signed the deed of adoption, we cannot attach any undue importance to it, because the deed of adoption was executed on March 1, 1944, on the 13th day after the death of Kedar Nath, and we find it difficult to believe that the appellant in the state of mind in which she must have been at that time in view of the death of her deceased husband, could possibly have understood all that was written in the deed of adoption or appreciated the implications of the recital set out in the deed of adoption. It cannot be gainsaid that the appellant made an application for appointment of herself as guardian of the third respondent, but that again may have been done by the appellant because she might have bona fide believed that the third respondent was her validly adopted son and from this, no inference can be drawn that she must have been authorised by Kedar Nath to adopt a son, unless it can be shown that all material times she was aware that she could not make a valid adoption without the authority of her deceased husband Kedar Nath. We are therefore of the view that the subsequent conduct of the appellant has no bearing at all on the decision of the question whether authority was given by Kedar Nath to the appellant to make an adoption. The High Court was in the circumstances clearly wrong in taking the view that the adoption of third respondent was valid and binding.

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

Explanation:
1[ds]It is obvious that he was a tutored witness and having forgotten to mention this alleged statement by Keadar Nath in hishe tried to introduce it in hisWe cannot accept this statement at its face value but even if it were true, it does not carry the case of the respondents any further, because it merely refers to a desire expressed by Kedar Nath to adopt the third respondent in preference to an outsider, but does not go so far as to say that Kedar Nath gave authority to the appellant to adopt the third respondent. Parmanand Chobey did not even state in his evidence that the appellant was present at the time when this talk took place between him and Kedar Nath. It is also significant to note that Parmanand Chobey did not state in his evidence, nor even in histhat he was present in the house of Kedar Nath in the evening of February 16, 1944 or that at that time, Kedar Nath authorised the appellant to adopt the third respondent. The evidence of Parmanand Chobey is therefore clearly of no assistance to the respondents.5. When we turn to the evidence of Nawal Kishore, we find that this evidence also does not go far enough to establish the conferment of authority by Kedar Nath on the appellant to adopt the third respondent. The only talk in regard to adoption, according to this witness, took place on the night between February 16 and 17, 1944 and during the period of 5 or 6 months prior to his death, Kedar Nath had not even mentioned a word about his desire to adopt a son. Even on the night between February 16 and 17, when Kedar Nath talked about the adoption, what he talked (sic) this witnesses was to ask Kashi Prasad and the second respondent to agree to the adoption of the third respondent and thereupon this witness talked to Kashi Prasad and the second respondent and Kashi Prasad immediately agreed while the second respondent went inside the house to consult his wife and then communicated their approval. This evidence, even if accepted as wholly correct, merely establishes that Kedar Nath proposed to adopt the third respondent and Kashi Prasad as well as the second respondent and his wife agreed with the proposal. It does not go further and say that Kedar Nath thereafter called the appellant and gave her authority to adopt the third respondent. We are not at all satisfied that even this conversation between Kedar Nath and Nawal Kishore took place on the night between February 16 and 17. It is indeed rather strange that the conversation in regard to the adoption of third respondent should have taken place just on the previous night before the death of Kedar Nath. It was not the case of either party that Kedar Nath was in such a serious condition on January 16 that it was apprehended that he might die on the next day, so that he might entertain the idea of adopting a son on the night of February 16. But even if we assume for the purpose of agreement that such a conversation did take place between Kedar Nath and Nawal Kishore and the second respondent and his wife agreed to the proposal of adoption of the third respondent, it is quite possible that Kedar Nath might have put forward this proposal with a view to himself making the adoption, but before he could make the adoption, he died on February 17, 1944. We do not, therefore, think that the evidence of Nawal Kishore goes any way near establishing the case of the respondents.6. That takes us to the evidence of the second respondent. Now the major drawback from which the evidence suffers is that the second respondent is clearly an interested witness. If the adoption of the third respondent is declared by the court to be valid, the third respondent, who is his only natural son, would get additionally 1/6th share in the joint family properties. We would, therefore, have no scrutinise the evidence of the second respondent with great care and caution. Now it is no doubt true that, according to the evidence of the second respondent, the talk in regard to the adoption took place one day prior to the death of Kedar Nath and on that day after obtaining the approval of the second respondent and his wife, Kedar Nath told the appellant to adopt the third respondent. But, we find it difficult to accept this evidence. Nawal Kishore, who, according to the evidence of the second respondent, was present at the time when Kedar Nath asked the appellant to adopt the third respondent, did to support the second respondent in his evidence that any such authority was given by Kedar Nath to the appellant. Moreover, it is difficult to understand how this talk about taking the third respondent in adoption took place just to the previous night before the death of Kedar Nath. It would seem as if Keadar Nath had premonition of his death and therefore on the previous night, he called the appellant and asked her to adopt the third respondent. That, we are afraid, is rather difficult to believe. It is also strange that if in the middle of January when the appellant came to Nagpur with her sisters son, Kedar Nath stated that he would to take the appellant sisters son in adoption, but that he would adopt the third respondent, why should he have waited till one day prior to his death to authorise the appellant to take the third respondent in adoption. We have already pointed out above that it was nobodys case that Kedar Nath was so seriously ill on February 16, that he apprehended that he might die on the next day. Then why should he have thought of giving authority to the appellant to adopt the third respondent on the night of February 16, he could have himself made the adoption on the next day. It is also difficult to understand why Kedar Nath who was lying ill even in the month of January should not have mentioned anything in his will about the adoption of a son to him, if he was thinking of taking a son in adoption. The entire story of Kedar Nath giving authority to the appellant to adopt the third respondent on the night of February 16, 1944 appears to be an afterthought and we cannot accept theis not doubt true, as concurrently found by the learned trial Judge and the High Court, that the appellant went through the ceremonies of adoption and executed a deed of adoption containing a recital that Kedar Nath had expressed his desire that the appellant should adopt the third respondent and also made an application for appointment of herself as the guardian of the third respondent. But we do not think that these circumstances are sufficient to establish the giving of authority by Kedar Nath to the appellant to make the adoption of the third respondent. There is nothing to show that the appellant was any time aware that she could not make a valid adoption without the authority of her deceased husband Kedar Nath. It is indeed difficult to believe that an uneducated rustic woman like the appellant would be conversant with the requirement of the Banaras School of Hindu Law that an adoption cannot be made by a Hindu widow without the authority of her deceased husband. It is quite possiblewe would even say, quite certainthat the appellant went through the ceremonies of adoption under the impression that what she was accomplishing was a valid act of adoption and in these circumstances, to conclude from the factum of adoption that authority must have been conferred upon her by Kedar Nath to adopt a son would be long jump in the argument which we cannot take. The deed of adoption undoubtedly contained a recital that Kedar Nath at the time of his illness expressed his desire that the appellant should adopt the third respondent, but significantly enough the deed of adoption does not state to when this desire was expressed. Nor does it state that the second respondent and his wife agreed to the proposal made by Kedar Nath and thereafter Kedar Nath told that appellant to adopt the third respondent. On the contrary what the recital says is that in obedience to the last desire of Kedar Nath, the appellant requested the second respondent to give the third respondent in adoption and the second respondent agreed to this request.