Case: Madhusudan Das Vs. Smt. Narayani Bai And Others

The appellant, who belongs to a prominent family of Jabalpur, instituted a suit, out of which the present appeal arises, for partition and separate possession and for rendition of accounts. The properties in suit comprise most of the estate falling to the share of one Seth Jagannathdas on a family partition of October 19, 1939.The genealogy of the family may be setBahadur Ballabhdas(died in 1925)Mannoolal Kanhaiyalal Jamnadas Mankuarbai(died in 1916) (died in 1923) (died in 1939)M. Narayanibai(Respondent) Narsinghdas(Respondent)Jagannathdas Balkrishandas Goverdhandas Madhu- Tribhu-M.Premwati sudandasand his wife Premwati had no children. Premwati suffered from tuberculosis for several years and died on September 24, 1951. After her death Jagannathdas created a trust by a registered deed dated March 17, 1952 called the Seth Mannoolal Jagannathdas Hospital Trust in respect of most of his estate He reserved the right to revoke the trust, but subsequently by a further document dated July, 14, 1952 he relinquished that right. Ever since the inception of the trust the trustees have remained in possession of the estate.The appellant filed the present suit on September 24, 1957 against Jagannathdas and the other trustees claiming that he had been adopted by Jagannathdas and Premwati as their son on September 24, 1951, that the trust was void and that he was entitled to half the estate. Jagannathdas died on October 7, 1957 during the pendency of the suit, and in consequence the appellant claimed a F 314th s hare of the estate, with the remaining 1/4th being conceded to Narayanibai the mother of Jagannathdas.The suit was decreed by the trial court on September 27, 1961 and a preliminary decree was passed declaring the appellant entitled to the share claimed by him and to partition and separate possession of the properties. The trust was declared invalid and the trustees, in consequence, were declared trespassers and liable to render accounts to theappeal by the trustees was allowed by the High Court by its judgment and decree dated September 30, 1967 and the suit has been dismissed,Several issues were tried by the trial court and considered on appeal by the High Court, but the most crucial and decisive issue, and which constitutes the core of the controversy between the parties, is whether the appellant can be said to be the adopted son of Jagannathdas. The trial court found that the appellant was in fact adopted by Jagannathdas and Premwati on September 24, 1951 and that the adoption was valid. The High Court has reversed the finding, taking a different view altogether of the evidence on the record.

Reasoning: The trial court then considered the matter of the execution of an adoption deed by Jagannathdas and Premwati as evidence of the adoption. It took into account the circumstances in which the document was considered necessary, its execution and attestation, and how it was at first entrusted to Seth Govinddas and then returned to Jagannathdas. It was not disputed that such a document was in fact signed by Jagannathdas and Premwati on September 24, 1951, and the trial court repelled the case of the respondents that Jagannathdas was compelled to sign it without and knowledge of its contents and that Premwati also did so in ignorance of what it set forth. The fact that Jagannathdas was aware of the nature of the document is fully establish ed by his reference to it as an adoption deed when he wrote out the receipt given to Seth Govinddas in evidence of its return. The trial court also noted that Jagannathdas disowned the adoption and the document later only when the circumstance around him changed as his wife approached her end and the over-powering influence of Narsinghdas began to take hold over his will.The adoption deed contains certain recitals which appear to militate against the appellants case. It refers to ceremonies, such as the performance of a "havan", to which none of the appellants witnesses have testified. The respondents contended from this that Do adoption had been effected at all. The trial court examined this apparent inconsistency and explained it with reference to the peculiar circumstances in which the document had beenthe fact of adoption the trial court found itself fortified by the contents of a letter dated August 21, 1957 written by Jagannathdas to his mother stating that he had accepted the appellant as his son. The original document had been returned to Jagannathdas and the trial court permitted a photograph of it to be exhibited in evidence. The signatures on the letters were proved to be those of Jagannathdas and the trial court found that it was not a fabricated document. The trial court also referred to the testimony of Narayanibai that her son Jagannathdas had desired that his last rites b e performed by the appellant, and there is no dispute that the appellant did perform the rites.There was a letter dated September 27, 1957 purporting to have been written by Jagannathdas to Narsinghdas indicating that Jagannathdas ha d taken exception to the appellant instituting the present suit and he desired that the suit be resisted vigorously in order to protect the trust. The trial court has commented that this letter was produced very late during the trial of the suit in September 1961, without any adequate reason for the delay, and it observed that the document was not free fromstandard of proof required would then have been the standard laid down by the Privy Council. The High Court applied that standard to a case which was quite different. The issue here was whether the adoption has been effected in circumstances which plainly did not permit time for making acknowledgements, observing elaborate ceremonies and giving notices generally. According to both parties, Premwati was seriously a ill. The appellants case is that she was so ill that she wanted to effect the adoption that very day. The respondents have alleged that she was already incapable of any activity. It is inconceivable that any elaborate arrangements for adoption could have been envisaged. In consequence, the High Court misdirected itself in applying a standard of proof to the evidence which the circumstances did not warrant. Its appreciation of the evidence is founded in that misdirection, leading to findings which are accordingly vitiated. On the contrary we find that the trial court examined the evidence relating to the actual adoption with great care and pointed out that as Jagannathdas had accepted Premwatis suggestion to have the adoption that very day and during her lifetime the issue of invitations to relations and friends, the observing of elaborate ceremonies and the taking of a photograph were out of the question and that only the bare essentials of the ceremony of giving and taking were possible.Even upon the approach adopted by the High Court, we find its findings vitiated by its failure to consider material evidence on the record and its reaching conclusions not substainable in reason. We have already pointed out that the allegation that Premwati was unconscious and in a cyanosed state on September 24, 1951 is be lied by her undisputed signature affixed on the adoption deed on that day. The High Court omitted to take this aspect of the case into account when it allowed the evidence of Dr. Choubey, the nurse Rachel and others to find favour with it. The High Court also failed to appreciate that in the application sent by Jagannathdas to the Deputy Commissioner and the District Superintendent of Police on September 27, 1951 Jagannathdas had stated that Premwatis illness took a serious turn at about 5 O clock in the afternoon on September 24, 1951 and it was from that hour that her condition became progressively worse until she expired at about 9 Oclock the same evening. This document has been produced by the contesting respondents. It does not detract from the case of the appellant that Premwatis condition was not so precarious as to forbid her from participating in the ceremony of adoption at about 3 Oclock in the afternoon. On the contrary, had Premwati been unconscious and in a cyanosed state throughout the day, as alleged by the contesting respondents, the statement made by Jagannathdas in his letter of September 27, 1951 would have been phrased differently.Ramsarandas deposed that he saw Premwati in the morning of September 24, 1951 and she insisted on having the adoption that very day because although "there was still time for the date of adoption" her health was deteriorating. The High Court declined to believe Ramsarandas because there was no evidence that any date had been fixed earlier for the adoption. We think the more reasonable way of looking at it is that Premwati had intended to mean that although otherwise there was still time for fixing a date in the future for adoption the poor state of her health did not permit her waiting any longer and the adoption should take place that same day.The High Court has discovered apparent discrepancies in the testimony of some of the witnesses produced by the appellant, but it seems to us that it has attempted to make too fine a point in regard to what those witnesses said or did not say. The High Court inferred that Sunderbai did not visit Premwati at mid-day on September 24, 1951 and this was based on the statement of Rattan Kumari that Sunderbai was not in Premwatis room nor in the adjoining verandah when Rattan Kumari visited Premwati between noon and 12-30 p.m. The High Court failed to note that this was about the time when Sunderbai had left Premwati to make arrangements for summoning the appellant from his college to come to the house. The High Court has also commented that it was not natural that Sunderbai should not have asked Premwati why her son was being called. The High Court in our opinion omitted to consider that it had been understood for quite some time that Jagannathdas and Premwati would adopt the appellant and it was natural to expect that on knowing of Premwatis serious condition Sunderbai should visit Premwati and at her instance send for her son for the purpose of adoption. Further, we have no doubt in our mind in view of the oral and documentary evidence that the appellant attended college up to the lunch recess and left it thereafter. The High Court has rejected that material without goodhave referred to some of the errors which vitiate the judgment of the High Court. It is not necessary, w e think. to advert to all of them It is sufficient to say that there was no adequate ground for the High Court to interfere with the finding of the trial court. We are of opinion that the finding of the High Court that the appellant had not proved his adoption must be set aside and that of the trial court restored.It is urged by the contesting respondents that in the event of the Court holding that the appellant is the adopted son of the Jagannathdas and Premwati he can be found entitled to a half share only in the properties. The submission is based on a recital in the trust deed executed by Jagannathdas that if the adoption deed "is declared valid by the highest court then, today, I express, by this writing, a strong and unequivocal intention to separate at once from the heir by the aforesaid alleged adoption deed and direct the trustees that in that event they shall get the property immediately partitioned and apply at least my half share in the property for fulfillment of the objects of the trust:" It is contended that the declaration contained in the trust deed must be regarded as effecting a partition whereby the share of Jagannathdas in the property stood separated from the share of the appellant and the former share must be treated as the subject of the trust. Both the trial court and the High Court rejected the contention. They held that a valid partition required notice to the co-sharer of the intention to separate, and no such notice was given nor could be inferred from Jagannathdas to the appellant. We are in agreement with the courts below. It was held by the Privy Council in Girja Bai v. Sadashiv Dhundiraj(1) and Bal Krishan and Ors. v. Bal Krishan and Ors.(2) that a separation is effected by a clear and unequivocal intimation on the part of one member of a Joint Hindu Family to his co- sharers of his desire to sever himself from the Joint Family. In A. Raghavamma and Anr. v. Chenchamma and Anr. (Supra), Puttrangamma and others v. M.S. Ranganna and Ors.(3) and Kalyani (dead) by L. Rs. v. Narayanan and Ors.(4) this Court held that there should be an intimation, indication or representation of such intention, and that this manifestation or declaration of intention should be to the knowledge of the persons affected because a mere uncommunicated declaration amounts to no more than merely harbouring an intention to separate. In the present case, there is no evidence whatever to show that the intention to separate was communicated by Jagannathdas to the appellant at any time when creating the trust. There are other grounds on which the appellant contends that the declaration of separation in the trust deed is wholly in effective, but we consider it unnecessary to consider them here.It may be pointed out that the High Court also repelled the plea raised by the contesting respondents that pursuant to a compromise affected by Narayanibai in a suit filed by her against the trust it was not open to her to claim from the trust a one-fourth share in that estate. The High Court rightly pointed out that the question did not arise because she could not be regarded as having given up a right then which vested in her onlythe present case, there is no evidence whatever to show that the intention to separate was communicated by Jagannathdas to the appellant at any time when creating the trust. There are other grounds on which the appellant contends that the declaration of separation in the trust deed is wholly in effective, but we consider it unnecessary to consider them here.It may be pointed out that the High Court also repelled the plea raised by the contesting respondents that pursuant to a compromise affected by Narayanibai in a suit filed by her against the trust it was not open to her to claim from the trust a one-fourth share in that estate. The High Court rightly pointed out that the question did not arise because she could not be regarded as having given up a right then which vested in her onlyon the death of Jagannathdas on October 7, 1957. On the question whether the suit was barred by limitation the High Court, in our opinion, also rightly concurred with the trial court in maintaining that it was not. No argument has been seriously raised before us in respect of these two points.