SSI .

MAOHUSUOAN, OAS

SMT. NARAYANI BAI AND OTH.ERS

November 25, 1982

(V.:iJ. TULZAPURKAR AND R, S, PATHAK, JJ.]

Evidence-Weight to be given to finding of facts by trial court-Principle governing.re-a; Jpraisal of oral evfdence by appellate court.

Evidence-Of witnesses holding position of relationship with parties-C, ot should examine its.probative value with reference to entire mosaic of facts appearing on record.

Adoption-:--Fact of adoption to be proved in the same way as any Other fact-Proof of physical act of givYlg and taking essential.

Joint Hindu Family-Partit/011-Notice to coshareTs of intent{on to

separat~ essentiaL

Jagannathdas and his wife Premwati had no children. Premwati suffered from tuberculosis and died on September ,24, 1951:. ThC'.reafter Jagannathd8s created a trust in respCct of-his estate which comprised of properties falling to his share in' a faMily partition. The. appe!latit filed a suit claiming that he bad been . adopted by, Jagannathas and Premwati as their son on September 24, 1951, that the trust was void and that be was entitled. to a half share in the estate. The trial court ecrecd the suit after finding that_ the appellt had in fact been ad.opted, by Jagannathdas and Prf:mwati and that the adoption was val!d.

On appeal by the trustees the High Court reversed the finding of tho trial court taking a different view of the .evidence on record and dismissed the suit.

Allowing tho appeal against tho order of tbo High Court,

HELD : in an appeal against a trial, .court decree, when the appellate Court consider.s an issue turning on oral evidence it must bear in mind that it does not enjoy the advantage which the trial court had in having the witnesses before il and of observing the manner in which they gave their testimor:iy. When there is a conflict of-Oral evidence on any matter in issue and its resolution turns upon tht!I credibility of the witnesses, the general rule is 'that the appellate court should permit the findings of faCt1 rende'ted by the trial court to prevail unless it clearly appears that some special feature about the evidence of a particular witness has escaped the notice of the trial court or there is a sufficient balance of improbability 'to displace its opinion as to where the credibility lies. The principle is one of practice and ovcms the weight to be given to a finding of fact by the trial court.

852 SUPRBMB COUllt RB!>ORTli ( 1983 l 1 s.c.I<.

The is, of course, Do doubt that as a matter of law if the appraisal of the evidence by the trial court Sl!ffers from a material irregularity or is basCd on inadmissible evidence or on a misreading of the'' evidence or on conjectures and surmises the appellate court is entitled to interfere with the finding of fact.

[856·0-E; 857-B-C]

W.c. Macdonald.¥:. FredJ.atimer; A.i.R.1929• P.C. 15; Watt v. Thomas.

L.R. 1947 A.C. 484 ; Sara Veeraswami alias Sara Veerra/u v. Talluri Narayya

(deceased) and Ors. A.I.R. •194~ P.C.·, 32-; Sarju Parshad v. Rafa Jwaleshwari Pratap Narain Singh and Ors., [1950] S.C.R. 781 ; and The Asiatic Steam Navl cation Co. Ltd ... v.·.Su~-[., t. Arabinda Chakrppartl,.-.[1959] :Supp. 1 S.C.R. 979 -referred to. I

In the instant case•the questioo, whethe'r the" appellant•had .in-, fa-ct.f•bcen adopted by Jaganoatbdas and Premwati had been determined by the tril court

essentially1onthe\basi~.f oral testimony anQ.-referenc_e 1had.been made to a few documents ;; only:;:dn ': supplo-mentation-, of. the oral.-evidcnoe, 1 ~·- The judgment of.1tho trial court showed that it had analysed the testilliony of each material witn'!S&-.and in reaching its conclusions on the issues of fact it had relie.d in some instances UP-{\D i~_,9w9aPPf, iS_f!.J of tQe rqnn~.r in \\'.hiqh t.lje witne$$CS preset j)efpre it bad fendered their testimony an~ ~d.eigAAd with, gfe.at_ ca~ the. probative_ value. of the evidence in the context of established fact-. and probability. But the High

Cor, t; Jia~, jn 4isgring,}yitl} the tri~Lcourt~ a)iQpted.n erroneoq,$ apprpach. It proceeded tO judge tbe credibility of the witnesses mainly with rCference to their relationship with the parties without placing adequate weight on the nature of the evidence and the probabiliy of its truth in the .. context of ·the surrounding circum'stances. It rejected the 1esti1:Dony of the'appellant's -witnesses substaOtially on the ground that they: were related to the-apllant. This caDnot, by itselfconsti-' tute a sufficient basis for discrediting· the '.witnesses. When a witness ibOldS'a position 9f rclationship faVouring the party producing-him or of possibleprejudicd against the contesting party, it is incumbent on the court -to exercise -apptopriate

catioii whenappraisjqg bis evidence and to examine its11r_obative-value with' reference to the entire mosaic of facts appearirig from the 'record.' It 'is ttot ~-open

to the court .to reject the evidence without anything CQOre on the mere ground of telationshipor favour of possible prejudice~~ The High Court-.'flhould-:atsO have

reminddit; e1r that the witnesSes had given their evidence before-tbe--triilcouri which-bad the opportunity of seeing their demeanour in the witne'ss box and the appreciation of their evidence by the"f:rial' court hadtO-be-givcndue-consideration in the light of that fact. [856-C; 857-D; 861-E-G; 862-A-B]

(b)f1. It is well settled that. a person1.who1 seeks l•to -1displace 1 th&f1naturali succession':,.(to. property ~:by_ ~.alleginJ:i an @dop, tion musti!isp_ba11gc_.tbe burdeni that1 lics, t.JPQ.n, him1bY pfoof_f he (ctµm, o.f a, dop, tiott nd its validity-.. , It is 8.lso . true., that rf.hc :-eyidn~ 1:inrpr0Qf, or i_he, aopti9n, should.be free.from all suspicie::i of

fraµd-~4 1so.consistc11t:nd_, pr0Pabl~ _as to, gi, v.~. no .occasion for:d9ubting .i's truth.

Nont-~~Iess ,·!he,., faq:-_-: Qf ~"dapt~9i; i must 9e prov, ed' i_n th.e1 same. way. ; q.s any o, ther .•

fact. . [862-C IJ.]1

. ...,....

A. Ragha.vamma and;-A.M.J, V. -A. Chanr.hatnmtf11and11An>:;:, A.l.Ro; 1964 ....S G;: ,~_.. 136and Kiabo, i; LQ/ v.Chall!baii{l959] Supu,+ S.C.J!,. §98-referrd..!Q.1.,,

.::

J.'

--.,. ......

. \ .

.>-._

MADHUSUDAN V, NARAYAN! BAJ

S53

(c) For a valid adoption the physical .act ot.siviog and taking is an' esseittial reQuisite, a :ceretnonY imperative in -au adaptions, WbateVe'r (he caste~'

Abdihi!rreqC1iSit'eis•salisfiediii"'its -essenceoh1ybfttie actual delivery &rid acceptance rof •theboy ;1even ·-thoti'gh)there~ exiSts' anrexpresSibtJ. 'of :cOOSdn t'br \iif exdCii~Cd deed1of, adoption ... .In 'SOme, cases, to complete.• the adoptibn;-a •''dattat"hOmafu" has_ been~ considered necessary but in the case-of .. the twice .. born classes -no .such ceremony is nccdCd if the adopted boy belongs to the same gotra as the adoptive father. [862-E; 863-B] ·

Shoshinath v. Krlshnasunder (1881) L.R. 7 J.A, 250; Lakshman Singh v. s1n1, nRupkan,; ar [1962] I s.o:&.' 477• and''Bdl'Giilig'"adhafTtlak vi'Shrtiilva•' Pandit (1915) L.R. 42 I.A. 135 re(erred to.

,, ln tbeFin$tant cast:.tbe, Hiah Oaurtt.elyiD.g•on:-rcertainubbsetvllf:iObs made by. the Privy Councii ..-in . S11troogan v. Sabitra,• helld' thatthe'.\trial.(Jourt.rhad, not

scrutinised the CVidence relating to the pCrformance Or the ceremony o(giving and taking and also did' not have due regard to the probabilities and, o~ that ba5is, . proceeded to' rCappraise the evidence in elaborate detail. When the Privy Council

ma:de those rt>bSei:vations'(it hB.d in1mind'cases Where itw&s paSlbJe'nodoubt to make the acknoledgements, observe the cereonies and give the nc; itiaes, adver:ted to by jt. The High Court applied that standard to a case which was quite different. The issue here was whethei: the adoption had been effected in circums tances which plainly did not permit time for i:naking acknowledgements, observing

elabora,.te'teremnniesattd 1giving n0ticesgenei8:tly; hAcc0'rding-_to bdth"the parties, Premwa.ti was seriously ill, The appellant's case hfthat she was so ill that she wanted to effect the adoption that very day ... Tbe respondents have 8Ueged tbat she was already incapable of.any acti_vity. tJ~.is, incoivablethatny, elaborate arrangements for adoPtion could have been envisaged. In consequence, the High Court misdirected itself in applying a standard o_f proof to the evidence which the circumstances did not .warrant. Even upon the approach adppted by the High Court itStfiD.dngs are vitiatCd by•its, failure tO'tdnsider mitei'ial-eVidence odrecord and by its raching concJti'sions not sustainable in reason. ''T.he pappellant .. baS pleaded the custom of his community that the act of giving and taking suffices to effect a valid adoption and nothing has been shown to indicate that the further ceremony of

1datta ho roam•, was necessary. [863..,:0J; I; -864--A-P; 864 .. F; 863B]

Sutroogan v. Sabitra, (1866) 5 W.R. 109 referred to.

: • 'i_ , l, ··(d) Separatiori from a Joinf'HiildU FaITtily is 'effected bY a clear aDd uneq"uivocai:.cintlmaticn on! the (part ofa- member-of-the1FarriilJ td hhfco:sharers of his desire to sever himseif from the Family.,_ ~A--mere U!:\Communicated'ldeclar.ation amounts to no mo~ than merely harbouring an intention to separate. A valid.

partition requires notice to the cosharers of the intention to separate. [8.69-C-E]

!i•Girfo Bai v.~Sadashiv, Dhundlr:a/;1{1·960]_:43-1'.ASfSl ; Bal-Ktishart ittlld'iOrs.

v. Ram Krishan and Ors .. , [1931],,581.A. 220; A Raghavamma and ... Anr. v. A.

Cherichamma ahd Anr. A.I.R." 1964 s.c. 136; 'Puttrangamma and Ors.; v. M.S.

Ranganita-:ad Ors. A-.[R. 1968' S.C.' 1018 i 1and ! Kalyan_f<(detillj by L. ?Rs.• v. - Narayanan and•Ofs.,, A.I.R. 1-98018.C. 1173 {referred_ to'.

SUPREME COURT REPORTS

11983) I s.c.R.

In the instant .case the trust deed contained a declaration on the part of Jagannathdas of bis intention to separate in the event of the adoption deed being. found valid by the court but no notice of such intention was given nor could be inferred from Jagannathdas to the appellant. Both the trial eourt and the High Court rightly rejected the conterition tbat the declaration in the trust deed must

be regarded as effecting partition. (869-E; 869-AJ

CIVIL APPELLATE JURl_SDICTION: Civil Appeal No. 2376 of 1969.

From the judgment and order dated the 30th September, 1963 of the Madhya Pradesh High Court in F.A. No. 82 of 1961.

B. D. Bal, Rameshwar Nath and N. Nagarathnam for the

Appellant.

S. B. Bhasme, S. S. Khanduja for Respondents I (a) to I (c).

S. S. Khandu}a, for Respondent No. I (d).

, M. N. Phadke, M. M. Sapre and J. S. Sinha for Respondents

Nos. 3 to 9 and 11.

The Judgment of the Court was delivered by

PATHAK, J. This is a plaintiff's appeal on a certificate granted under sub-clause (a) of clause (I) of Art. 133 of the Constitution by G the High Court of Madhya Pradesh.

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.

..._ ,.-

·~

MADHUSUDAN v. NARAYAN'! BAI (Pathak, J.) 855

The genealogy of the family may he set forth :

. Diwan Bahadur Ballabhdas .\ (died in 1925)

~~~~~~~~~~~~~~~~

Mannoolal (died in 1916) M. Narayanihai

Kanhaiyalal (died in 1923)

Jamnadas (died in 1939) Mankuarbai

I . (Respondent) Narsinghdas (Respondent) I Jagannathdas M. Premwati

Balkrisbandas Goverdhandas Madho- Tribhusudandas wandas (Appellant)

Jagannatbdas and his wife Premwati had no children.. Premwati suffered from tuberculosis for several years and died on September 24, 1951. After her death Jagannatbdas 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, 'fie reserved the right to revoke tho trust, but subsequently by a further document dated Jilly, 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 Jaganoathdas and the other trustees claiming that he bad 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. Jagaonathdas died on October 7, 1957: during the peodeocy of the suit, and in consequence the appellant claimed a 3/4th share of the estate, with the remaining I/4th being conceded to Narayanibai the mother of Jagann.atdas.

The suit was decreed by the !rial 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 pro.perties. The trust was declared invalid and the trustees, in consequence, were declared trespassers and liable to render accounts to the appellant. ·

An appeal by the trustees was allowed by the High Court by its H judgment and decree dated September 30, 1967 and the suit bas been dismissed. ·

856 SUPRl!ME::COUl!.T REPORTS .,[J983j J S.C.R.

Several issuenvewtried by the trial court 1and considered on appeal by the High Court, b_ut the most crucial and decisive issue, ·and' which •constitutes ·be core of the controversy between the parties, is whether the appellant can be said to be the adopted son of Jagannathdas. -Tue'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,1 the finding, taking a different view altogether of the evidence on the record.

• The question wliether the appellant was in fact adopted" by Jagannathdas and Premwati has been _determined essentially on .. the basiii of oral testimony, and reforence has been made to a few documents on1y in supplementation of the oral evidence. At this stage, it would be right. to refer to the general principle that, in an appeal. against a trial court decree, when"the appellate court coniders', an

'issu~ turning on oral evidence it must bear iri mind that it do'es'iloi:

enjoy the advantage which the trial court had in having the witnesses beforb if and.of observing.the maqner in which they gave their "les't'i- mony. 'Whe.ti'there is a coriflfot of oral evidence ori any matter 'in issue and' its resohi\ion turns upon the credibilit{of the witnesses, the general rule is thafthe appellate court should permit 'the' findings of fact "rendered by the trial couri to prevail nnlesii it cfoarly appears that some special feature about the evidence of a particular witness has escaped the notice of the trial court or there is a >:Sufficient balance of. improbability to displace its opinion as to where the, credibility lies. In this connection, reference inay usefully be made to W.C. Macdonaldv. Fred Latimer(')•where the Privy CouncilIaid downthat when there is a• direct conflict between the oral' evidence of the, parties, _and there is no documentary evidence that clearly' affirms one view -or contradicts the other, and there is no sufficient balance of improbability to displace the trial court's findings as to . the truth of the oral evidence, the appellate court can interfere only on vei:y clear proof of'•lllisfake by the trial court. ·Io Watt v.

Thomasf) it was observed:· " ...... it is a cogent circ"ucnstaoce that a judge of'fil'st instance, when estimating the value of verbal testimony has the advantage (which is denied to courts of appeal) of having the _witnesses before •him and observing• the manner 'in which their evidence is given." This was adverted to with approval by the

(!) AIR 1929 P.C. 15, 18.

(2\ L.R: 1947 A.C. 484, 486. ·

.. '

.....

MADHUSUDAN v. NARAYAN! BAI (Pathak, J.) 857

Privy Council in Sara Veeraswami alias Sara Veerraju v. Tal/url Narayya (deceased) and others(') .l'nd found favour with this Coun in Sarju Par shad v. Raja Jwaleshwari Pratap Narain Singh and Ors,(2). It. seems to' us that this app.roach should be placed in the forefront in . considering whether the High Court proceeded correctly in the evaluation of the evidence before it when deciding to reverse the findings of the trial court. The principle is one of practice and governs the weight to be given to a finding of fact by the trial court.

There is, of course, no doubt that as a matter of law if the appraisal of the evidence by the triai court suffers from a material irregularity or is based on inadmissible evidence or on a misreading of the evidence or on conjectures and surmises the appellate court is entitled to interfere with the finding of fact.

Our attention has been drawn by the respondents to The Asiatic Steam Navigation Co. Lrd. v. Sub- Lt:habindra Chakravarti( 3) , but nothing said therein detracts,- in otir opinion~ from the validity of the proposition enunciated here.

- The judgment of the .trial court shows that it analysed the testimony of each material witness and in re1ching. its conclusions on the issues' of fact it relied in some instances upon its own appraisal of - the_ manner in which the witnesses present before it rendered their. testimony' and weighed with great care the probative value of the evidence in the context of established fact and probability.

On the central issue whether the appellant had been adopted by Jagannathdas and Premwati it commenced logically with an examination of the circumstances in which an adoption could he envisagd. Jagannathdas and Premwati were without issue.

The wife was suffering from tuberculosis for about_ eight to ten years without any possibility of improvement and her health was fast deteriorating. There was no hope that she would bear a child. Jagann"athdas admittedly belonged to an old respected family steeped in tradition and orthodox belief. He was the owner of considerable property. It was natural that Jaoannathdas and Premwati should conceive the need for adopting a

so~. Jagannathdas was on the evidence, a sickly man of weak mind and ·.of weak will and of little. education, and in the administration of his. affairs Mankuarbai, his father's sister, and Narsinghdas, his uncle's son, played a prominent role.

Premwati was aware of her husband's limitations and handicaps and quite understandably was anxious that a son should be adopted.

The

(I) AIR 1949 P.C. 32.

(2) [1950] S.C.R. 781, 783.

(3) [1959] Supp, 1 SCR 979.

SUPREME COURT REPORTS [1983) I s.c.ll.

husband and wife were devoted to each othe.r, and all the circum stances point to the conclusion that if Premwati desired the adoption of a son Jagannathdas. would readily go along with the idea. He would willingly agree to whatever. she wanted. Th.ere is evidence that Mankuarbai, who Jived with Jagannathdas, knew of Premwati's

desire to adopt a son. the desire to adopt a son was known to others also, and they included Narsinghdas.

For it was first decided to consider the adoption of his son Gopalda s. There is clear evidence that the child spent six months to a year in the house of Jagannathdas spending the day with Premwati and sleeping during the night with Mankuarbai. For some reason, however, it was decided not to adopt him. There is a suggestion in the evidence that his horoscope indicated an early death, but the trial court .has not relied on this.

The desire to adopt a son continued aud it was in the circumstances only natural to consider one of the sons of Seth Ja, mnadas, the only other brother of the father of Jaganoathdas. The appellant, Madhusudandas, was then a boy studying in college a:nd the choice alighted on him. The trial court nlied on the evidence of, among others, Narayanibai, mother of Jagannathdas, in reaching this con clusion. It has also referred to material clearly showing that when Premwati went to Panchmarhi in the summer of 1951 and stayed there for about two months with Narayanibai it was decided to send for Madhusudandas and have him stay wi.th them for some time in order to determine whether, by his deportment and behaviour and the manner of his living, he was a suitable boy for adoption.

The trial court found that the appellantdid go to Paochmarhi and stayed with premwati for some days. The trial court has also analy sed the testimony of witnesses deposing to the contrary, and has given good reason for discarding that testimony. It inclined to the . . view that the appellant had found favour with Jagannathdas ancl Premwati and that they decided to adopt him.

The next question considered by the trial court was whether the appellant was in fact adopted on September 24, 1951. Consider- able evidence was led on both sides to show the physical and mental condition of Premwati on that day, it being the case of the appellant that she was in fit condition to effect the adoption while the case of the contesting respondents was that her condition was so serious that it forbade any such possibility. There is no doubt that her condition was not good, having suffered deterioration during the preeeding four days. The appellant produced a number of witnesses to prov<:

that as she had grown very wealc slJe requested that the adoption.

-"""

MADHUSUDAN v. NARAYAN! BAI (Pathak; J.) 859

take place 'that very day and that she was able to participate in the ceremony of adoption. The qontesting respondents on the . other hand, led evidence to show'that she had slipped into a "cyanosed State" and was totally incapable of any physical and mental activity.

The trial court devoted detailed attention to the issue and carefully sifted the evidence adduced in support of the allegation that Premwati was unable to speak and "completely cyanosed" on September 24, 1951, and after weighing it in the light of uncontrovertible or admitted fact it found the allegation untrue. ' In the first place, it observed that the written statement filed by Narsinghdas did not describe her specifically as being "cyanosed". It found .that the evidence of Dr. Choubey, who deposed that Premwati was unable to respond, could not be believed, nor was it possible to rely on the nurse Rachel, whose name was not mentioned in the original list of fifty-six witnesses filed by Narsinghdas, and who stated that she had been told by Dr. Choubey that Premwa<i was in an unconscious state.

The entire case set up in evidence was completely demolisiled by the undisputed fact that Premwati liad indeed signeq the adoption deed on September 24, 1951. Much capital was made by the con, tsting respondents o( the fact that the appellant had not examined Gopinath Vaidya to establish the condition of Premwati's health and tile fact of adoption on September 24, 1951, but the trial court, in the course of its judgment, has referred in some detail to the app'ellant's elf or ts to have the evidence of that witness recorded. At the appellant's instance a commission had been issued at Hathras for the examination of Ramsarandas and Gopinath Vaidya.

On June 22, 1960 both . witnesses were present before. the Commissioner at Hathras, but the Commissioner took an unexpectedly long time in examining Ramsarandas ori that day, and on the next day, to which he had deferred the examination of Gopinath Vaidya, he left town suddenly to see his sick son. Toe appellant, the trial court' poinled out, sought to examine the witness on a subsequent date in court at Jabalpur, but the witness did not appear.

 In regard to the actual ceremony of adoption the trial court took into account the evidence of several witnesses who were. members of the branches of the parent family and who testified to the adoption and to the physical and mental condition of Premwati' at the time. The case of the appellant was supported by oral and documentary material evidencing that while he had attended college in the morning on that day he did not do so in the afternoon, there- .by lending credence to the appellant's cas~ that on coming to 'know

860 •UPRl'ME C'OUR1 PEPORTS p 983] I s.c.R.

from Premwati that she intended the adoption of the ppellant that very day Sunderbai, the appellant's mother, sent for him at mid-day from his college.

The trial court then considered the matter of the execution . of an adoption deed by Jagannathdas and Premwati as evidence of the B 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 tlisputed that such a document was in fact signed by Jagannathdas and Premwati on September 24, c

li'

1951, and the trial court repelled the case of the respondents that Jagannathdas was compelled to sign it without any knowledge of its contents and that Premwati also did so in ignorance of whai it set forth.

The fact that Jagannathdas wa• aware of the nature of the document is fully estabHsbed by his reference to it as an adoption deed when he wrote out t_he receipt given to Seth Govinddas in envidence of its return. The trial court also noted that Jaganoathdas 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 appellant's case. It refers to ceremonies, such as the performance of a "havan", to which none of the appellant's witnesses have testified.

The respondents co_ntended from this that no 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 been prepared.

On the 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 andthe trial court found that it was not a fabricated document. The trial court also referred to the testimony of . Narayanibai t.hat her son Jagannatbdas bad desired that his last rites be performed by the appellant, and tbre is no dispute that tbe .

appellant did perf9rm th~ .rites,

. _,

MAl>HUSUDAN v: NARAYAN! BAI (Pathak, J.) 861 ' There was a letter dated September 27, 1957 purporting to have been written by Jagannathdas to Narsinghdas indicating that Jagannathdas had taken exception to the appellant instituting the present suit and be desired , that the suit be resisted vigor9usly in order to protect the trust.

The trial court has commenied that this letter was produced very late during the trial of the suit in Septembr 1961, without any adequate reason for the delay, and it observed that the document was not free from suspicion.

·• " In the result, the trial court held that the adoption of the

appellant stood proved in fact.

On the validity of the adoption the trial court examined the law and found that legal requisites for a valid adoption in the case of the families of the appellant and Jagannathdas, who belonged to Rajasthan, did not extend to more than the ceremony of giving and taking, and that the ceremony of 'dattak homam" was not necessary to effectuate the adoption of the appellant. Accordingly, the trial court took the view that the adoption was valid in law ..

The High Cort disagreed with the trial court and held that the. adoption had not been established. In doing so, it adopted an approach which, to our mind, i.s plainly erroneous. It proceeded to judge the credibility of the witnesses mainly with reference to their relationship wi_th the parties without placing adequate weight on the nature of the evidence and the probability of its truth in the context of the surrounding circumstances. It rejected the testimony ofthe appellant's witnesses substantially on the ground that they were related to the appellant or out of favour with Narsinghdas. This consideration, in our opinion, cannot by itself constitute a sufficient basis for discrediting the witness, s.

We think the proper rule to be that when a witness holds a-position of relationship favouring the party producing him or of possible prejudice against the contesting party, it is incumbent on ihe court to exercise appropriate caution

.. when appraising his evidence and to examine its probative value with reference to the entire mosaic of facts appearing from the record. It is not open to the court to reject the evidence with0ut anything more on the mere ground of relationship or favour or possible prejudice.

The judgment '!nder appeal indicates thet the High Court commenced with that mistaken approach, and we see its influence working throughout its appraisal of the testimony of the several witnesses. It is only logical that with its approach so oriented even the most

• F

SUPREME COURT REPORTS [i98jj 1 s.c.il.

significant material adduced by the appellant should, in the eyes of the High Court, take on a negative hue.

The High Court should also have reminded itself that these same witnesses had given their evidence before the trial court, whicr had the opportunity of seeing their demeanour in the witness box, and the appreciation of their evidence by the trial court should have been given due consideration in the light of that fact.

It is well settled that a person who seeks to displace the natural succession to property by alleging an adoption must discharge the burden that lies upon him by proof of the factum of adoption and its validity.

A. Raghavamma and Anr. v. A. Chanchamma and Anr (1) It is also true that the evidence in proof of the adoption should be free from all suspicion of fraud and so consistent and probable as to give no occasion for doubting its truth.

Kishori Lal v. Chaltibai.(') Nonetheless the fact of adoption must be proved in the same way as any other fact.

For a valid adoption, the physical act of giving and takin'g is an essential requisite, a ceremoliy imperative in all adoptions, whatever the caste.

And this requisite is satisfied in its essence only by the actual delivery and acceptance of the boy, even though there exists an expression of consent or an executed deed of adoption.

Shoshinath v. Krishnasunder.(') In Lakshman Singh v. 'Sm{ Rup-' kanwar ,(') this Court briefly stated the law thus :

"Under the Hindu Law, whether among the regenerate caste or among Sudras, there cannot be a valid adoption unless the adoptive boy is transferred from one family to another and that can be done only by the ceremony of giving and taking. The object of the corporeal giving and receiving in adoption is obviously to secure due publicity .• To achieve this object it is essential to have a formal cere.

many. No particular form is prescribed for the ceremony, but the law requires that the natural parent shall hand over . the adoptive boy and the adoptive parent shall receive him. '

The nature of the ceremony may vary depending upon the

(I) AIR 1964 (SC) 136. (21 [1959] (Supp) I SCR 698.

(3) [1881] LR. 7 I.A.1250,

(4) [1962] I SCR 477, 490.

. ..

MADHUSUDAN v. NARA YANJ. BAI (Pathak, ).)

S63

circumstances of each case. •But a ceremony there shal I be, and giving and taking sall be part of it."

In some cases, to completethe adoption a "datta homam" has been considered necessary, but in the case of the twice-born classes no such ceremony is needed if the adopted boy bciongs ti;> the same gotra as the adoptive father. Bal Gangadhar Tilak v. Shriniwas

Pandi, t.(1) In the present case, the appellant has pleaded the custom of his community that the act of giving and taking suffices to effect a valid adoption, and nothing has been shown to us to indicate that the further ceremony of "datta homam" was necessary.

Apparently, for this reason the parties concentrated in the maiil liefore ihe High Court on the limited controversy whet!ier in fact th~ ceremony of giving and taking had been performed. In the course of adjudicating on this controversy, the High Court referred to the observations of the. Privy Council in Sutroogan v.

Sabitra(2) :

, .,'Although n'eiiher written ac!Cnowledgements, nor the performance of any 'reilgiobs cereniohial, are essential to llie validity of 'adopiioris, such acknowledgements are 'usUahy given, and such cer'eriionfos 'observed, and notices

'giVen'df tlietimes when aaopfions are "to take pface, in all

fatnilies 6l' aistioctfon, as 'ilioseof 'Zarilindars' or opulent -Brahhiihs, that 'wherever 'ihese have been omitted, it

bello\les tliis Court to regard with extreme suspfoion the proof offered in support of an adoption. I would say, that in no case should the rights of wives and daughters be transferted to strangers, or in ore remote relatives, unless the proof of adoption, by which the transfer i~ effected, be proved by evidence free from all suspicion offraud, and so consistent and probable as to give no occasion for doubt of its truth." •

and it proceeded to hold that the trial court had not scrutinised the G evidence relating to the :performance of the ceremony of giving and taking and did not have due regard to th~ probabilities. On that basis the High Court rested its justification for re-appraising the

eidence in elaborate detail. Now, when the rivy Council made .

(!) [19JS] L.R. 42 I.A. 135.

(2) [1866] S W.R. (P.<:.) 109.

• a

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those observations it had in mind cases where it was possible no doubt to make the acknowledgements, observe the ceremonies and give the notices adverted to by it. It had in contemplation the usual kind of case where that was possible aod where though possible it had not been done. The standard 'lf 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.

Th~ issue here was whether the adoption has been effected. in circumstances which plainly did not permit time for making acknowledgements, . observing elaborate ceremonies and g1vmg notices generally. According to both parties, Premwati was seriously

ill. The appellant's 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 siandard 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 Premwati's suggestion to have the adoption that very day and during her Jifotime the issue of invitations to relations and friends, the observing of elaborate ceremonies and tbe lf1king 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 ounhat the allegation that Premwati was unconscious and in a cyanosed state on September 24, 1951 is belied by her undisputed signature affixed oo 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, i95.1 Jaga.nnathdas had stated tbat Premwati's illness took a serious turn at about 5 O'clock in the afternoon on September 24, .1951 and it was from that hour that ber condition -

·~

MADHUSUDAN v. NARAYANI BAI (Pathak, J.) 865

became progressively worso until she expired at about 9 O'clock the same evening. This document has been produced by the contesting respondents. It does .not detract from the case of the appellant that Premwati's condition was not so precarious as to forbid her from participating in the cere1nony of adoption at about 3 O'clock 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 lime for the date of

adoptfon" 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 niore 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 Sep tern ber 24, 1951 and this was .based on the statement of Rattan Kumari that Sunderbai was not in Premwati's 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 Prem wati to make arrangements for summoning the appellan( from his college to come to the house. The High Cnrt has also commented that it was not natural that Su.nderbai should not have asked Premwati why her soti 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 lt was natural to expect that on knowing of Premwati's seriom 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

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I mind in view of the om! and documentary evidence that the appellant attended college up to the lunch recess and .Jeft it thereafter. The High Court has rejected that material without good reason.

The High Court bas taken the view that Jagannathdas was averse to adopting the appellant, and it has relied on the eviMnce of 'J\fotilal, a witness of the respondents. It is clear from "the evidence that at first Gopaldas, the son of Narsingbdas was considered for adoption and thereafter the appellant was kept in view for that.purpose. There can be absolutely no doubt that Premwati was anxious to adopt a son during her lifetime and was actively involved in finding a suitable boy for that purpose. It is impossible to believe that Jagarinathdas, her husband, was not privy to all that was going on and was not i~ agreement with J>remwati in what she 'intended. The evidence demonstrates that he was a loving and devoted husband ahd greatly concerned with the gratification of' his wife's wishes.

His attitude to the appellant's adoption changed only as Premwati's life ebbed away, and the influence of Narsinghdas, without any significant force to counter it, began to spread its pall over him. We must remember that the real possibility of the adoption of his son Gopaldas, at an earlier stage, must have greaily appealed to Narsinghdas as it wouid have extended his domain over the estate of Jagannathdas.

When, however, that i)Ossibility died and it became evident that Jagannathdas and Premwati wotillt adopt the appellant instead, his attitude towards the intended adoption would inevitably have been hostile. It must not be forgotten that he had been intimately associated with the administration of. the affairs of Jagannathdas and there is evidence thanhey met almost daily. In the circumstances, the decision of Jil.gannathdas and Premwati to abandon their intention to adopt his son Gopaldas and to prefer the appe!Jant must have hurt considerably. Theevents which took place on September 24, 1951 moved much too rapidly for him to have taken any effectivecounter•measures, and he could have been able to assert his will over Jagannathdas only after Premwati's restraining influence was removed from the scene.

With a person of Jagannathdas's weak character and at a time when he was oppressed by his wife's death and bewildered by the confusion surrounding him, that would not have been difficult. Indeed, the pressure of Narsinghdas's influence began to manifest itself almost shortly after the adoption bad taken place, and Premwati, who was aware of the injury which be could work on her husband's simple

MADH\Js\JDAN v. NARA\ ANI BAI (Pathak, J.) 867

mind, insisted on the execution of an adoption deed while she was still alive in order to protect the adoption. That her misgivings were not unfounded is evident. from the circumstance that shortly after the document had been entrusted to Seth Govinddas, Jagannathdas asked for its return.

The High Court has. declined to accept the adoption also on the ground that the adoption deed mentioned the performance of a '.'havan" and other ceremonies when in fact there is no evidence whatever that those ceremonies were performed. It does appear that there is an inconsistency between the case of the appellant' and some of the recitals in. the adoption deed. The inconsistency has been explain_ed satisfactorily by. the trial court. It is apparent that the document was prepared by the lawyer, .Jamna Prasad Dubey, containing recitals usual in such a document, and Manmoh_andas who had entrusted him with the task could have given him only the briefest instructions in regard to its contents. Time was running out fast as Premwati's condition grew progressively worse, and when it was brought before her and read out it was too late to 'effect a change in some of the recitals, and consequently it was signell as it was by Jagannathdas and Premwati. "'

The complaints made by Jagannaihdas to the Deputy Commissioner and the District Superintendent of Police as well as the public notices published in the. newspapers disclaiming execution of the adoption .. deed and the adoption are explicable only in the context of the overpowering influence of Narsinghdas .. So also is the creation of the Trust in which Narsinghdas secured for himself the office of working trustee in respect of most of the properties. It is significant that the power ohevocation reserved to himself by . Jagannathdas was relinquished by him within a merefour mon(l:is

of the creation of the Trust. The entire conduct of Jagannathdas persisting thereafter can be ascribed to the position to which he had been persuaded, namely, one of active. opposition to the appellant's claim of adoption. The attitude was tempered only later, when a few weeks before his death he wrote to his mother that he had "ow.ned" the appellant as his adopted son.

The High Court has referred to some instances where the appellant, inconsistently with . his Claim of adoption, continued to

868 SUPIU!i.IE COtlRT REPORTS [1983) 1 s.C.11..

show himself as the son of Seth Jamnadas. There were the partition deed, the application, for mutation of names in Naya Mahal, the Income-tax proceeding and other records, but cleaily these are matters in respect of which . the appellant plainly considered it judicious not to assert his title in proceedings which could only result in its summary determination but to prefer to wait and institute an appropriate suit for an authoritative declaration of his status.

The determination to file the suit must have gathered impetus from the changing attitude of Jagannathdas in favour of the appellant and reflected in his letter dated August 21, 1957 addressed to his mother in wliich he clearly states his acceptance of the appellant as his son.

It may be noted that this case of adoption was not conceived for the. first time by the appellant when the suit was filed ; the claim to that status had been asserted by an application made as early as October 20, 1951.

The High.Court rejected the letter dated August 21, 19i7 written by Jagannathdas to his mother accepting the appellant as his son. We are not impressed by the reasons given by it. It erred in assuming that the.photostat copy was produced only at the stage of evidence.

It was in fact filed by the appellant on February 15, 1958 before the written statements of the defendants were filed.

We have referred to some of the errors which vitiate the judgment of the High Court. It is not necessary, we think. to advert to all of them .. Jt is sufficient to say that there was no adequaie ground for the High Court to interfere with the finding of the trial' court. we are of opinion that the finding f the High Court thai

- the appellant bad 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 expresB, 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

' . - '

MADHUSUDAN v. NARAYAN! BAI (Pathak, J.) 869

partitioned and apply at least.my half share in the property for fulfilment of the objects of the trust.'' It is contended that the declaration contained in the trusL deed must be regarded as effecting a partition whereby the share of Jagannathdas in the property stood separated froin 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 Pr.ivy Council in Girja Bai v. Sadashiv Dhundiraj(') and Bal Krishan and Ors. v. Ram Krishan and Ors.(') that a separation is effected by a clear and unequivocal intimation on the part of one . member of a Joint Hindu Family to his cosharers 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.(') 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 trusi.

There are other grounds on which the appellant contends "that ihe 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 com. promise affected by Narayanibai in a suit filed by. her against the trust it was not open to'.her to claim from the trust a onefourth 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 only on the death of Jagannathdas on October 7, 1957.

O_n the question whether the suit was barred

(I) [1960] 43 I.A. 151.

(2) [1931] 58 I.A. 220.

 (3) AIR 1968 SC 1018.

(4) AIR 1980 SC 1173,

SUPREME COURT REPORTS [ 1983) 1 s.c.R.

by limitation the High CoQrt, in our opinion, also rightly concurred rith the trial court in maintaining that it was not. No argument has been seriously raised before us in respect of these two points.

In the result the appeal is allowed, the judgment and decree of the High Court are set aside and the judgment and decree of the trial court are restored. The appellant is entitled to his costs from the second and ninth respondents.

H.L.C.

Appeal allowed.