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

1. In this appeal by special leave though number of contentions were taken, we have not thought it necessary to go into all of them as in our judgment High Courts conclusion that Shyam Behari Lal (1st defendant) had been validly adopted by Gopal Das is well founded2. The suit from which this appeal arises is for possession of the suit properties on the basis of title. The 1st plaintiff Debi Prasad claims title to the properties as the nearest heir to Gopal Das, his maternal uncle who died in 1934. The 2nd plaintiff is an alienee from the 1st plaintiff3. In order to properly understand the controversy in the present case, it is necessary to have before us the family pedigree. The admitted pedigree is as shown below:4. The common ancestor of the family was Lajja Ram who died in 1874. We are now concerned with the branch of Kedar Nath, the father of Gopal Das who died on February 18, 1934. His widow Bhagwan Dei died on October 19, 1934. The contention of Debi Prasad is that Gopal Das had separated from his family; he died intestate and, therefore, being the nearest heir of Gopal Das, he is entitled to the properties left by Gopal Das. The plaintiffs claim was resisted by the 1st defendant Shyam Behari Lal, who claimed to be the adopted son of Gopal Das. According to Shyam Behari Lal, he had been adopted by Gopal Das in about the year 1892 when he was only an infant. He also resisted the suit on the ground that Gopal Das was an undivided member of his family and therefore the 1st plaintiff in any event cannot claim any rights to the suit properties. His further contention was that the 1st plaintiff was estopped from contending that he was not the adopted son of Gopal Das. Shyam Behari Lal died during the pendency of the appeal before the High Court and his legal representatives are contesting this appeal. Debi Prasad also died during the pendency of this appeal. The trial Court substantially accepted the claim made in the plaint but in appeal the High Court reverted the decree of the trial Court and dismissed the suit.

Reasoning:
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.