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1989 DIGILAW 14 (CAL)

Ganesh Chandra Hazra v. Sajani Bala @ Ludan Bala Hazra

1989-01-30

MONORANJAN MALLICK, S.P.RAJKHOWA

body1989
Judgment S.P. Rajkhowa, J. This second appeal is directed against the appellate judgment and decree dated 21.12.84 passed by Sri T.P. Chatterjee, Additional District Judge, 4th Court, Mindapore dismissing the Title Appeal No. 132 of 1981 and affirming the judgment and decree passed in the Title Suit No. 77 of 1976 by the Subordinate Judge, 3rd Court, Midnapore. 2. The main point for decision is as to whether the defendant/appellant Sri Ganesh Chandra Hazra is the legally adopted son of the plaintiff/respondent Sm. Sajani Bala alias Ludan Bala Hazra. Both the courts below came to a concurrent finding that the defendant is not legally adopted son of the plaintiff. This court sitting over a second appeal would generally be reluctant to interfere with the concurrent findings of the Courts below. But Sri Roy Chowdhury, learned counsel for the appellant has submitted that both the courts below came to an erroneous finding as because all the evidence on record was not considered by them and has urged before us to peruse the evidence on record in its entirety to come to a correct finding. He is supported by two decisions of the Supreme Court in Budhwanti and another v. Gulabchand Prasad AIR 1987 SC 1484 and Dilbagrai Panjabi v. Sharad Chandra, AIR 1988 SC 1858 . The subject matter of these two reported decisions are not similar to the case in hand. But the principle enunciated by the Supreme Court in these two reported cases will apply, because an interference by the High Court is permissible when the findings of the lower courts are vitiated by application of wrong test. Accordingly, as urged by the learned counsel for the appellants, we have gone into the entire evidence on record as well as the judgments of both the courts below. The plaintiff-respondents contention is that the defendant/appellant is not her adopted son and her deceased husband Mahendra did not give her any authority to adopt the defendant as her son. She contends that the documents relating to the adoption of the defendant and flied and proved by the defendant regarding his adoption by the plaintiff are not valid documents and she did not execute any such paper. Being an illiterate woman she did not know the contents of these documents and the defendant got these documents executed by exercising undue influence on her. Ext. 1 is the unregistered deed of adoption. Being an illiterate woman she did not know the contents of these documents and the defendant got these documents executed by exercising undue influence on her. Ext. 1 is the unregistered deed of adoption. The learned Subordinate Judge found fault in Ext. 1 on the following grounds:- (1) That there is averment regarding giving of adoption but there is no averment regarding acceptance of the defendant in adoption by the plaintiff; (2) that the father of the defendant executed Ext. 1, but his mother (natural mother) did not execute the same; (3) that the natural mother was absent at the time of Sumpradan. However, after such findings he observed that these irregularities should not be viewed rigidly. But then he examined together Ext. 1 and Ext. A which is the registered deed of declaration by the plaintiff accepting the defendant as her adopted son, alongwith the evidence on record and came to the conclusion that the adoption of the defendant did not take place in a valid way and this finding clinches the issue in favour of the plaintiff The learned Subordinate Judge also observes in his judgment that he fails to understand as to why the defendant was not taken into adoption by Mahendra Nath Hazra while he was alive. According to the learned Subordinate Judge, the defendant simply stayed at the house of the plaintiff like a son and not as a son adopted. He further observes that the plaintiff is an illiterate woman and the defendant exerted undue influence on her. 3. The learned lower appellate court agrees with the finding of the learned Subordinate Judge that Ext. 1 is obviously an irregular document of adoption. He also throws the burden on the defendant to prove' as to why Mahendra did not adopt him while he was alive. He also came to the conclusion that the authority of Mahendra to plaintiff to adopt the defendant as her son remains not proved. According to him neither the defendant nor any of his witnesses had said anywhere in the evidence that Mahendra, before his death, gave verbal direction to the plaintiff for the adoption of the defendant. He also came to the conclusion that the authority of Mahendra to plaintiff to adopt the defendant as her son remains not proved. According to him neither the defendant nor any of his witnesses had said anywhere in the evidence that Mahendra, before his death, gave verbal direction to the plaintiff for the adoption of the defendant. But the lower appellate court held on erroneous view of the law of adoption when it says that under the Old Hindu Law (the instant case is governed by the Old Hindu Law) the power to give a boy in adoption had to be exercised both by the father and the mother and the same could never be exercised by anyone of them alone. As Ext. 1 was signed by the father alone and not jointly with his mother, the lower appellate court held and concurred with the finding of the learned Subordinate Judge that Ext. 1 is an irregular document of adoption. By discussing the evidence on record the lower appellate court observes that there is no whisper either in the evidence of the defendant himself or in the evidence of anyone of his witnesses that the defendant's mother also was present on the alleged date of the adoption and gave her consent in the matter along with her husband. Upon such findings the learned lower appellate court dismissed the appeal. Being aggrieved, the defendant has come before us in the second appeal. 4. As adverted to before we have gone through the evidence on record and we are going to deal with it presently. Before that we would like to discuss the law point on the question of valid adoption. We have consulted both Mulla and Mayne to set at rest any doubt regarding consent to be given by the parents for adoption. The Hindu Law of Adoption as it stood before the Hindu Adoptions and Maintenance Act, 1956, says that only those who have domain over the child have the power of giving him in adoption but it is quite settled that the father alone has absolute authority to dispose of his son in adoption, even without the consent of his wife, though her consent is generally sought and obtained. Thus it is clearly seen that the natural father has the absolute authority to give his son in adoption without the consent of his wife. Thus it is clearly seen that the natural father has the absolute authority to give his son in adoption without the consent of his wife. It therefore follows that so far the fact of giving in adoption is concerned there is no legal infirmity in Ext. 1. It remains to be seen whether there was acceptance of the defendant in adoption by the plaintiff. A perusal of Ext. 1 shows that in token of acceptance the plaintiff had put her thumb mark at two places. The plaintiff (P.W. 1) has professed ignorance about the contents of this document on the ground of being an illiterate woman. But whenever she is concerned the wants to extricate herself by professing ignorance. This is seen in her evidence relating to her case as stated in the plaint. She said that she knew nothing as to what the recitals were in the plaint. If the does not know anything above the plaint case, then the suit is liable to be dismissed on this score alone. Apart from Ext. 1 and Ext. A the plaintiff is found to have exhibited several other documents including sale deeds. It can never he said that she is ignorant of the contents of these documents also. We find no reason as to why we should disbelieve the evidence of D.W. 2, Satya Sadhan Chakraborty who was aged about 77 years at the time of his deposition in 1981, the evidence of D.W. 3, Ajit Kumar Pal and the evidence of D.W. 4, Bhabataran Sai who was aged about 73 years at the time of his deposition. All these three witnesses were present at the Sampradan ceremony and signed Ext. 1 and all of them have stated that the plaintiff had put her L.T.I. on the document. D.W. 3 has fun her stated that he wrote Ext. 1 and he made the endorsement tinder the thumb impression of the plaintiff. He is corroborated by D.W. 4. It is contended that the Ext. 1 was written in Sanskrit language (in Bengali script) and so the plaintiff did not understand the contents. But it is known to one and all governed by the Hindu Law that such documents are written in Sanskrit to give the stamp of sanctity. In Hindu marriages Sanskrit Mantras are recited and there are hundreds of illiterate couples reciting those Mantras although they do not know Sanskrit. But it is known to one and all governed by the Hindu Law that such documents are written in Sanskrit to give the stamp of sanctity. In Hindu marriages Sanskrit Mantras are recited and there are hundreds of illiterate couples reciting those Mantras although they do not know Sanskrit. But they know for certain the import of those slokas that from that very day they had become "bone of their bones and flesh of their flesh" thereby meaning that they have been united irrevocably. A matter like adoption under the Hindu Law cannot be taken lightly. Adoption is very sacred and the primary object of adoption is to secure spiritual benefit to the adopter and his ancestors by having a son for the purpose of offering funeral cakes. Temporal considerations regarding succesion and inheritance to the property of the adoptive father or adoptive' mother are of secondary importance. An adopted son severes all connections with the family of his natural parents and becomes a part and parcel of the adoptive parents from the time of adoption. See the following sentence in Ext. 1:- "Nasmin putre satyamasti na ba pindadhikarita" and see the solemnity attached to the adoption and how it expresses the poignancy of the natural father. From that time onwards the natural father shall have no claim over his son given in adoption and he shall have no right to claim Pinda from him. The recital in Ext. 1 goes to show that neither in prosperity nor in adversity will the natural father get back his son. These sentiments cannot be this subject of ridicule. It is sought to be contended that no religious ceremony was performed. The evidence on record is otherwise. Assuming that there was no religious ceremony, we must not forget that the parties to the suit are 'Sudras' and are governed by, Bengal school of Hindu Law. There may be a valid adoption in case of Sudras even without going through the formalities of the religious ceremony. Giving and taking were complete when the defendant was put on the lap of the plaintiff by the natural father. There are other facts and circumstances which lend eredence that the defendant was the adopted son of the plaintiff. The defendant, in his minority, was admitted into the school and his father's name was given as Mahendra Nath Hazra (vide Ext. H). There are other facts and circumstances which lend eredence that the defendant was the adopted son of the plaintiff. The defendant, in his minority, was admitted into the school and his father's name was given as Mahendra Nath Hazra (vide Ext. H). We cannot say that at the time of admission the defendant was so cunning that it was he who entered the name of his father as late Mahendra Nath Hazra. Defence evidence that it was the plaintiff who took the defendant to the school for admission and showed the name of Mahendra Nath Hazra as his father cannot be brushed aside. Again as rightly pointed out by the learned counsel for the appellant, the plaintiff herself has described the defendant as the adopted son of her husband late Mahendra Nath Hazra at the first page of the plaint itself. Further from Ext. D we find that the plaintiff had sold some land to one Jyotindra Nath Ghosh. The purport of the sale deed is that she had to sell that land to defray the outstanding marriage expenses of her adopted son. The learned counsel for the respondent wanted to draw a difference between the words Poshya Putra (adopted son and Palita Putra (brought up like a son). But in view of our foregoing discussions we find that both the words have been used to signify only (me thing, that is, adopted son. Thus we hold that there was acceptance of the defendant in adoption by the plaintiff and the document (Ext. 1) is a genuine one and a valid deed of adoption as regards giving and taking. 5. It is contended that the document was not registered. But the registration of a deed of adoption is not compulsory. Under s. 17 of the Indian Registration Act it should be registered only to prove the fact that there was authority from the husband to the wife to take somebody in adoption and so in order to make the document admissible in evidence the defendant was ordered by the trial judge to pay the stamp duty of Rs.30/- and the penalty of Rs.300/- (total Rs.330/-) (vide endorsement dated 22.1.81 on the reverse of the last page of Ext. 1). The amount was accordingly paid and the document was impounded and admitted in evidence (vide order-sheet dated 29.1.81 of T.S. No. 77/76). 1). The amount was accordingly paid and the document was impounded and admitted in evidence (vide order-sheet dated 29.1.81 of T.S. No. 77/76). After that the document became as good as a registered one. 6. But alas, a big 'but' remains. Although we have found strong evidence in favour of a valid adoption, to our under dismay, we do not find any cogent evidence as to the husband's authority to the widow to adopt the defendant. The widow cannot adopt to herself. She must adopt to her deceased husband. The husband died about 5 years before adoption. She denies that her husband gave her any authority to adopt. So the burden is heavy on the defendant to prove such authority. Of course, the defendant was a minor when the husband of the plaintiff died. So he may not be in a position to say when the husband gave the authority but there is the recital in Ext. A that the husband gave authority to the widow to adopt. The defendant had examined 5 (five) witnesses including himself. Ext. 1 was signed by many persons out of whom some had been examined as defence witnesses. But none of them has stated in their evidence that the husband of the plaintiff gave her the authority to adopt the defendant as their son. This may be a case of inadvertence. But it proves costly to the defence. So the fact that the husband gave authority to the plaintiff to adopt remains not proved and we are constrained to hold that the plaintiff has got no such authority from her husband to adopt the defendant as their son. 7. In view of our above discussion we do not find anything to interfere in the impugned judgment and decree and therefore the appeal be and the same is dismissed. The judgment and decree appealed against are hereby affirmed. Considering the facts and circumstances of the case there is no order as to costs. Monoranjan Mallick, J. I agree. Appeal dismissed.