Case: Debi Prasad (Dead) By L.Rs Vs. Tribeni Devi And Ors

the said firm." 17. If Debi Prasad was the rightful heir to the estate of Gopal Das, he could not have admitted in the year 1935 that Shyam Behari Lal was the proprietor of the firm Gopal Das Chhangamal. Debi Prasads explanation that on the date he gave that deposition, he was unaware of the fact that he was the heir of Gopal Das, cannot be believed. In Ex. A-226, the decree in the aforesaid suit, Shyam Behari Lal was described as the son of Gopal Das. Exh. A-274 is another certified copy of the deposition given by Debi Prasad. This was given on July 19, 1923 in a suit where Gopal Das was the plaintiff. Therein he stated in cross-examination:"The plaintiff No. I has got a son named B. Shyam Behari Lal Vakil ...... Our business is also ancestral business. His son Shyam Behari and his grandson Mukut Behari are members of a joint Hindu Family." He further stated therein:-"Lala Gopal Das, his son (referring to Shyam Behari Lal) and grandson are the sole owners of the firm styled Kuramal Kedar Nath." 18. Exh. A-236 is the certified copy of the plaint filed by Shyam Behari Lal and Debi Prasad jointly in Suit No. 353 of 1935 in the Court of Civil Judge, Faizabad. In paragraph 1 of the plaint, it is stated:"The proprietor of the said shop was Gopal Das, father of the plaintiff No. 1 till his life time and after his death to which about a year nine months and half have passed, the plaintiff No. 1 as survivor became and is the proprietor of the said property." This is an extremely important admission. This admission was made after the death of Gopal Das. Therein Debi Prasad not only admitted that Shyam Behari Lal was the son of Gopal Das, he further admitted that he became the proprietor of the concern by survivorship. This could have only happened if Shyam Behari Lal had been adopted by Gopal Das. Exhs. A-352 and 356 are two applications made for registration of a firm under the Indian Partnership Act, 1932. The first application was made on March 26, 1936. It was returned with some objection and the second application was made on May 4, 1936. Both these applications bear the signature of Debi Prasad as well as Shyam Behari Lal. In those applications, it was stated that Shyam Behari Lal had succeeded as a partner of the firm whose registration was sought in the place of his father Gopal Das who had died. Exh. A-358 is an application for transfer of shares made to the Banaras Cotton and Silk Mills Ltd., by Debi Prasad. Thereunder he sought to transfer his 100 shares to Shyam Behari Lal whom he described in his application as the son of Gopal Das. Similar averments were made in Exh. A-359. 19. Exhs. A-262, 656, 657 and A-276 are the statements made by the relations of Shyam Behari Lal and Debi Prasad wherein Shyam Behari Lal was described as the son of Gopal Das. 20. A large number of documents have been produced to show that friends, relations and even strangers were treating Shyam Behari Lal as the son of Gopal Das. The documents produced before the Court conclusively prove that right from 1907till 1946, Shyam Behari Lal was treated as the son of Gopal Das. This continuous and consistent course of conduct on the part of Debi Prasad, Gopal Das and others affords a satisfactory proof of the fact that Shyam Behari Lal must have been the adopted son of Gopal Das. No other reasonable inference can be drawn from the material on record. 21. Mr. Desai appearing on behalf of the appellants contended that we should not accept the adoption pleaded firstly because, it was unlikely that Gopal Das would have taken a child in adoption as far back as 1892 when he was only 32 years of age; secondly the story that a one-day old child was taken in adoption when the family must have been in pollution must be rejected as being repugnant to Hindu notions and lastly in a decree of 1910, Shyam Behari Lal was described as the son of Ram Das, his natural father. We are unable to accept these contentions. It is in evidence that Gopal Das had lost three children even before 1890. Evidently he had lost all hopes of getting a natural son. Further it is not necessary to speculate in the face of the documentary evidence referred to earlier why Gopal Das should have taken a son in adoption when there was every [possibility for him to get a natural son. Coming to the question of adoption on the very day Shyam Behari Lal was born, that plea rests on hearsay information. There is no positive evidence before us as to when exactly Shyam Behari Lal was adopted. From the evidence of D. Ws. 10 and 15, it is clear that he must have been adopted very soon after his birth. That is the best that can be said on the basis of the evidence. That apart custom differs from place to place and from community to community. It is true that in a decree made in 1910, Shyam Behari Lal was described as the son of Ram Das. But in the very next year in another decree, he was described as the son of Gopal Das. We do not think that the evidence afforded by that solitary document showing Shyam Behari Lal as the son of Ram Das can outweigh the other evidence which is both satisfactory as well as voluminous. 22. On an appreciation of the entire evidence on record, we are in agreement with the High Courts conclusion that Shyam Behari Lal was the adopted son of Gopal Das and there is nothing to show that the said adoption was invalid for any reason. In view of this conclusion, it is unnecessary to consider the other contentions raised in the appeal.

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

Explanation:
0[ds]We are unable to accept these contentions. It is in evidence that Gopal Das had lost three children even before 1890. Evidently he had lost all hopes of getting a natural son. Further it is not necessary to speculate in the face of the documentary evidence referred to earlier why Gopal Das should have taken a son in adoption when there was every [possibility for him to get a natural son. Coming to the question of adoption on the very day Shyam Behari Lal was born, that plea rests on hearsay information. There is no positive evidence before us as to when exactly Shyam Behari Lal was adopted. From the evidence of D. Ws. 10 and 15, it is clear that he must have been adopted very soon after his birth. That is the best that can be said on the basis of the evidence. That apart custom differs from place to place and from community to community. It is true that in a decree made in 1910, Shyam Behari Lal was described as the son of Ram Das. But in the very next year in another decree, he was described as the son of Gopal Das. We do not think that the evidence afforded by that solitary document showing Shyam Behari Lal as the son of Ram Das can outweigh the other evidence which is both satisfactory as well as voluminous22. On an appreciation of the entire evidence on record, we are in agreement with the High Courts conclusion that Shyam Behari Lal was the adopted son of Gopal Das and there is nothing to show that the said adoption was invalid for any reason. In view of this conclusion, it is unnecessary to consider the other contentions raised in the appeal9. There is no doubt that the burden of proving satisfactorily that he was given by his natural father and received by Gopal Das as his adoptive son is on Shyam Behari Lal. But as observed by the Judicial Committee of the Privy Council in Rajendro Nath Holder v. Jogendro Nath Banerjee,) 14 Moo Ind App. 67 (PC) that although the person who pleads that he had been adopted is bound to prove his title as adopted son,as a fact yet from the long period during which he had been received as an adopted son, every allowance for the absence of evidence to prove such fact was to be favourably entertained, and that the case was analogous to that in which the legitimacy of a person in possession had been acquiesced in for a considerable time, and afterwards impeached by a party, who had a right to question the legitimacy, where the Defendant, in order to defend his status, is allowed to invoke against the claimant every presumption which arises from long recognition of his legitimacy by members of his family;that in the case of Hindoo, long recognition as an adopted son, raised even a stronger presumption in favour of the validity of his adoption, arising from the possibility of the loss of his rights in his own family by being adopted in another family.In Rup Narain v. Mst. Gopal Devi, (1909) 36 Ind App. 103 (PC), the Judicial Committee observed that in the absence of direct evidence much value had to be attached to the fact that the alleged adopted son had without controversy succeeded to his adoptive fathers estate and enjoyed till his death and that documents during his life and after his death were framed upon the basis of the adoption. A Division Bench of the Orissa High Court in Balinki Padhano v. Gopalkrishna Padhano, AIR 1964 Orissa 117; held thatin the case of an ancient adoption evidence showing that the boy was treated for a long time as the adopted son at a time when there was no controversy is sufficient to prove the adoption although evidence of actual giving and taking is not forthcoming. We are in agreement with the views expressed in the decisions referred to above12. Before dealing with the evidence mentioned earlier, it is necessary to mention that the High Court has relied in proof of the adoption pleaded, on the evidence of D. W. 10 Rikhab Das and D. W. 15 Chhotey Lal. Both of them were the close relations of the wife of Gopal Das. They are disinterested witnesses. Their evidence is to the effect that sometime after the birth of Shyam Behari Lal, the wife of Gopal Das took him to her paternal home where Paon Pheri ceremony was performed. There is satisfactory evidence to show that this ceremony is customarily performed in the parental home of a lady who has given birth to her first child. We see no reason to disbelieve the testimony of these witnesses. Their evidence clearly indicates the fact that Shyam Behari Lal must have been taken in adoption by Gopal Das. We may also at this stage refer to another important circumstance appearing in the case. As mentioned earlier, both Gopal Das and his wife died in the year 1934. the suit from which this appeal arises was instituted only in 1946, just a few months before the period of limitation for instituting the same expired. Debi Prasad has not given any satisfactory explanation for this inordinate delay in instituting the suit. This circumstance tends to show that the suit is likely to be speculative one.