Case: Dwarka Nath Vs. Shri Lal Chand And Others

deeds should have recited the irrelevant fact that authority was given to Rani Gomti Bibi to make the adoption. This is perhaps right, but the fact remains that the two directions of Rai Pratap Chand went hand in hand; and even if the fact of authority was not recited in the documents, one would expect at least the oral will to make the endowments to be mentioned. This shows that the whole story about oral directions to Rani Gomti Bibi was untrue. 8. Mr. Agarwala then seeks to use the statements made by Gaya Prasad and the witnesses before Mr. Thompson. In the High Court this claim was based upon Ss. 11, 32 and 157 of the Indian Evidence Act. The High Court rejected these statements and declined to attach any value to them. Section 11 was not relied upon before us; but the other two Sections were referred to in an effort to have that evidence read. Section 157 of the Indian Evidence Act lays down :"157. Former statements of witness may be proved to corroborate later testimony as to same fact: In order to corroborate the testimony of a witness, any former statement made by such witness relating to the same fact at or about the time when the fact took place, or before any authority legally competent to investigate that fact may be proved." Two circumstances, which are alternative, are conditions precedent to the proof of earlier statements under this Section. The first is that the statements must have been made at or about the time when a fact took place. The fact here is the authority said to have been given by the husband in 1901. The statements were made on December 18, 1928, 27 years after the event. They cannot be said to have been made "at or about the time when the fact took place". Further, as rightly pointed out by the High Court, the Court of Wards was making an enquiry for the purpose of according its consent. It was not enquiring into the fact of the giving of authority as an authority legally competent. That authority, as we have pointed out already, is the civil Court for the civil Court alone can finally decide such a question. It can do so even after the Court of Wards had reached a conclusion, and contrary to that conclusion. Section 157, therefore, cannot make the statements provable. 9. Mr. Agarwala next relies on S. 32(7) of the Indian Evidence Act to introduce the earlier statements. That sub-section reads :"32. Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the Court unreasonable, are themselves relevant facts in the fallowing cases:- * * * * * * * * (7) When the statement is contained in any deed, will or other document which relates to any such transaction as is mentioned in S. 13, clause (a): * * * * Clause (7) makes relevant statements made in deeds, wills and such other documents which relate to transactions by which a right or custom in question "was created, claimed, modified, recognised, asserted or denied" [to add the words of cl. (a) of S. 13]. The clause does not allow introduction of parole evidence, see Field on the Law of Evidence 8th Edn. P. 202. Such parole evidence may be relevant under cl. (5) of S. 32 but that is not relied upon. We questioned Mr. Agarwala whether he wished to rely upon clause (5), but he did not wish to put his case under that clause and we need not therefore, consider the application of that clause. We think Mr. Agarwala is right in taking this course, because cl. (5) requires that such a statement should have been made before the question in dispute was raised. The statements in question were definitely made after the question in dispute in the suit had already arisen, because one enquiry had already been made by Mr. Knox and the statements now relied upon were made in the second enquiry before Mr. Thompson. 10. Mr. Agarwala next wishes to use the statements made by Gaya Prasad on March 14, 1926 "Ex 72" : but that clearly is not admissible, because when it was made in the suit, Gaya Prasad was being examined as a party before issues were framed. In fairness to Mr. Agarwala it may be mentioned that he did not press the point after noticing the above fact. 11. Mr. Agarwala contends lastly that as Dwarka Nath was adopted on November 28, 1929 and the present suit was filed on May 21, 1945, after more than 15 years; and as during this time, Dwarka Nath had been considered by everyone to be legally and validly adopted the suit ought to have been dismissed. It may be pointed out that Parmeshwar Dayal never accepted the adoption of Dwarka Nath. He had filed an earlier suit and questioned the competence of Rani Gomti Bibi to make the adoption of Bindeshwari Prasad. In that suit he had denied that Rai Pratap Chand had given authority to his wife to make the adoption of a son after his death. He consistently denied the validity of the second adoption and in these circumstances, it cannot be said that he was concluded by any rule of law from questioning the adoption of Dwarka Nath after Rani Gomti Bibis death. 12. On an examination of all the legal pleas against the judgment of the High Court we are satisfied that none of them avails the appellant. In so far as the questions of fact are concerned, we have already stated that we do not propose to go into them as it did not appear to us that there was any legal reason for reaching a different conclusion.

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

Explanation:
0[ds]The Section obviously places a hurdle in the way of adoptions by the wards which must be removed before the adoption can be valid. The Section affects the competence of the Wards to make the adoption and as the consent is a prerequisite, any adoption made without such consent must be ineffective. The Section, however, does not make the sanction of the Court of Wards to cure illegalities or breaches of the personal law. Nor does the sanction make up for incompetence arising under the personal law. It is obvious that if the adoption is void by reason of the personal law of the person adopting, the consent of the Court of Wards cannot cure it. Nor would the consent take the place of the essential ceremonies or the religious observance where necessary. Those matters would have to be determined according to the personal law in Civil Court of competent jurisdiction7. In deciding the question of authority, the High Court rejected the oral evidence led before it and affirmed the conclusions of the trial Judge. The High Court considered this evidence both intrinsically and in the light of the attending circumstances and found it unacceptable. The trial Judge pointed out that as lawyers were present when Rai Pratap Chand is alleged to have given authority to his widow and as it was also suggested that that fact should be recorded, it was unbelievable, if the statements were true, that written authority would not have been prepared then and there. The High Court did not content itself with accepting the opinion of the trial Judge but discussed the evidence de novo and rejected it. The High Court pointed out that Rai Pratap Chand was only 30 years old at the time of his death and his wife was 25 years old and he could not have abandoned the hope of having an issue. Evidence shows that the writing was put off because it was not thought that Rai Pratap Chand was dying. The High Court also pointed out that Rani Gomti Bibi executed between November 24, 1901 and August 19, 1904 four doecuments making different endowments. In none of these documents, she mentioned that she had been asked by her husband to make them. The High Court pertinently pointed out that the oral evidence showed that the declaration of the authority to his wife and the oral will to make the endowments, were made by Rai Pratap Chand at the same time and these facts would have figured as the reason for the endowments in these documents. Mr. Agarwala contends that even if the reasons for the endowments might be expected to be expressed, it is not logical to say that the deeds should have recited the irrelevant fact that authority was given to Rani Gomti Bibi to make the adoption. This is perhaps right, but the fact remains that the two directions of Rai Pratap Chand went hand in hand; and even if the fact of authority was not recited in the documents, one would expect at least the oral will to make the endowments to be mentioned. This shows that the whole story about oral directions to Rani Gomti Bibi was untrue12. On an examination of all the legal pleas against the judgment of the High Court we are satisfied that none of them avails the appellant. In so far as the questions of fact are concerned, we have already stated that we do not propose to go into them as it did not appear to us that there was any legal reason for reaching a different conclusion.