SSI

.

MAOHUSUOAN, OAS

v.

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,o~t

should examine its.probative value with reference to entire mosaic of facts appearing

on record.

B

c

Adoption-:--Fact of adoption to be proved in the same way as any Other

fact-Proof of physical act of givYlg and taking essential. D

Joint Hindu Family-Partit/011-Notice to co·shareTs 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, Jagannath~as 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 appell~t 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 improbabi­

lity

'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.

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

Th~e 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 tri~l court

essentially1on·the\basi~.~f oral testimony anQ.-referenc_e1had.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~_,9w9~aPPf,~iS_f!.J of tQe rq~nn~.r in \'.hiqh t.lje witne$$CS prese~t 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

Co~r,t;Jia~, jn 4is~gr~ing,}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· probabili~y of its truth· in ·the .. context· of ··the· surrounding cir­

cum'stances. It rejected the 1esti1:Dony of the'appellant's -witnesses substaOtially on

the ground that they: were related to the-ap~llant. This caDnot, by itself-consti-'

tute a sufficient basis for discrediting·· the '·.witnesses. When a witness ·ibOldS'a·

position 9f rclationship faVouring the party producing-him or of possible·prejudicd

against the contesting party, it is incumbent on the court -to exercise -apptopriate

ca~tioii w·hen··appraisjqg 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

telationship·or favour of possible prejudice~~ The High· Court-.'flhould-:atsO have

remind~d- it;e1r ·that· the witnesSes had given their eviden·ce 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 had·tO-be-givcn·due-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.who·1 seeks l•to -1displace 1 th&f1naturali

succession':,.(to. property ~:by_ ~.alleginJ:i an @dop,tion must~i!isp_ba11gc_.tbe burdeni that1

lics,t.JPQ.n,him·1bY pfoof_~f ~he (~ctµm,o.f a,dop,tiott ~nd its validity-.. , It is 8.lso . true.,

that rf.hc :-eyid~n~ 1

:in·rpr0Qf, or i_he,a~opti9n,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;: ,~_..

136·and Kiabo,i;LQ/ v.·Chall!baii{l959] Supu,+ S.C.J!,. §98-referr~d..!Q.1.,,

.::

J.'

--.,. ......

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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 adap·tions, WbateVe'r (he caste~'

Abd~ihi!rreqC1iSit'e·is·•salisfied·iii"'its -essence·oh1y~bf·ttie actual delivery &rid· accep­

tance rof •the~boy ;

1even ·-thoti'gh)there~ exiSts' an·rexpresSibtJ. '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 Oaurt~t.elyiD.g•on:-rcertainubbsetvllf:iObs made

by. the Privy Councii ..-in . S11troogan v. Sabitra,• helld' that·~the'.\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 it·w&s paS~lbJe'no·doubt to

make the ackno~ledgements, observe the cere~onies 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'teremnnies~attd 1giving n0tices·genei8: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,inco~ivable~that~ny·, 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.d~ngs are vitiatCd ·by•its, failure tO'tdnsider mitei'ial-eVidence od~record

and by its r~aching 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

1

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

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 un-

eq"uivoc·ai:.cintlmaticn ~on! the (p·art of-a-member-of-·the1FarriilJ td hhf·co:sharers ·of

his desire to sever himseif from the Family.,_ ~A--mere ·U!:\Co·mmunicated'ldeclar.ation

amounts to no mo~ than merely harbouring an intention to separate. A valid.

partition requires notice to the co·sharers of the intention to separate. [8.69-C-E]

!i•Girfo Bai v.~·Sadashiv,Dhundlr:a/;1{1·960]_:43-1'.AS- fSl ; 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-:a~d 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'.

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854 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.

H

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

pro­

perties in suit comprise most of the estate falling to the share of one

Seth Jagannathdas on a family partition of October 19, 1939.

..

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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)

I

Jamnadas

(died

in 1939)

Mankuarbai

I . (Respondent) · Narsinghdas

(Respondent)

I

Jagannathdas

M. Premwati

Balkrisbandas Goverdhandas Madho-Tribhu­

sudandas 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 regis­

tered· 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.at~das.

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.

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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. ·

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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 docu­

ments 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 con~iders',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 Council·Iaid

down·that 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. ·

.. '

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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

envisag~d. 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.

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858 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 appellant·did

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

uncontro­

vertible 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,t~sting

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

examina­

tion 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

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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,

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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

cir­

cumstance 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 tb~re is no dispute that tbe .

appellant did perf9rm th~ .rites,

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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

Septemb~r

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

Co~rt 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

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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 s~all be part of it."

In some cases, to complete·the 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 'iliose·of '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." •

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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

e~idence in elaborate detail. Now, when the ~rivy Council made .

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

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

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SUPRFM~ COURT REPORTS (1983] I S.C.R.

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

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I

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

reason­

able ·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 arrange­

ments for summoning the appellan( from his college to come to

the house. The High C~nrt has also commented that it was not

natural that Su.nderbai should not have asked Premwati why her

soti wa·s 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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SUPREME .c0URT REPORTS (1983] 1 S.C:.R.

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otilal, a witness of the respondents. It is clear from "the

evidence that at first Gopaldas, the son of Narsingbdas was consider­

ed for adoption and thereafter the a·ppellant 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 Narsinghda·s,

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. The·events

which took place on September

24, 1951 moved

much too rapidly

for him to have taken any effective·counter•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 ·con·sequently 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

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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

' . -

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

partitioned and apply at least.my half share in the property for fulfil­

ment of the objects of the trust.'' It is contended that the declara­

tion 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.ormer 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 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.(')

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 harbourin·g 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 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 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,

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870 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.

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