Suraj Bux Singh v. Ram Shankar — 1989 DIGILAW 368 (ALL)

JUDGMENT P. Singh, Member - This second appeal is directed against the Judgement and decree dated 25-9-75 passed by shri G.S. Seth, Additional Commissioner, Lucknow Division, in appeal no. 206 of 1974-75. 2. Briefly stated the facts of the case are that plaintiff-appellant, Suraj Bux Singh, filed a suit under Sections 229-B/209 of 1951 against Ram Shanker and Raghunath (now deceased), and others, on the allegations that Smt. Rani alias Ranno, widow of Niranjan, was the tenure holder of the land in dispute and after the death of Smt. Ranno, defendant no. 2, Raghunath, came in possession, that defendant no. 2, Raghunath, executed a sale deed in favour of plaintiff-appellant on 6-10-70 and since then he had been in possession over the land in dispute. He further stated that defendant no. 1, Ram Shanker, was the daughter son of Smt. Rani alias Smt. Ranno and had no concern with the land in dispute that his possession was unauthorized as he had obtained possession through proceedings under Section 145 Cr. P.C. to which the plaintiff-appellant was not a pary and, hence, the necessity arose for filling the present suit the suit was contested by defendant no. 1 or the allegation that he was the adopted son of Smt. Rani alias Smt. Ranno, who had executed a registered adoption deed no 13-12-51. He further stated that defendant no. 2 Raghunath, was not the legal heir of Smt, Ranno, who had executed a registered adoption deed no. 13-12-51. He further stated that defendant no. 2 Raghunath, was not the legal heir of Smt, Ranno and had never been in possession over the land in dispute and had no right to transfer the land in favour of the plaintiff appellant and that on the basis of the alleged sale deed which was fictitious and void, the plaintiff-appellant was decreed by the trial court which held that the adoption of defendant-prefered before the learned Additional Commissioner who allowed the appeal vide order dated 25-9-75. Against that order the instant second appeal has been filed. 3. I have heard the learned counsel for the parties and have perused the record and the judgements passed by both the courts below. 4. The learned counsel for the appellant submits that respondent no. Against that order the instant second appeal has been filed. 3. I have heard the learned counsel for the parties and have perused the record and the judgements passed by both the courts below. 4. The learned counsel for the appellant submits that respondent no. 2, Raghunath (now deceased) was brother of Niranjan and was legal heir who executed a registered sale deed in favour of the plaintiff-appellant and since then the plaintiff-appellant had become the owner of the land in dispute, that Smt. Ranno being a widow could not adopt respondent no. 1 as son in the absence of any such direction or will of her late husband, that respondent no.l was admittedly daughters son of Niranjan and as such the alleged adoption of respondent no. 1 by Smt. Ranno was void as mother of Ram Shanker could not be married with Niranjan being daughter in her maiden state, that according to the custom which was clear from the extract of Wajibul Are of the First Settlement, no one except some boy in the family could be adopted as a son and as such the alleged adoption was against the established custom, that no ceremony for adoption had been proved, that the name of Raghunath was mutated over the land in dispute as heir and brother of Niranjan in place of Smt. Ranno, that orders in proceedings under Section 145 Cr. P, C. could not confer any legal rights on the respondent no.l, and that the lower appellate court had wrongly held that the adoption had not been challenged whereas the adoption had been challenged by the plaintiff-appellant. Against this, the learned counsel for the respondent submits that Wajibul Arz is not admissible in evidence, that it only depicted the code of conduct or custom of exproprietors and not of common village people. Relying on 1941 R.D. 598 he says that on the point of custom it had no legal significance and was not a conclusive piece of evidence, that a perusal of the Wajibul Arz will indicate that it does not provide for permission of custom for adopting a daughters son governed by Benaras School of Mitakshra Hindu Law. Relying on AIR 1985 Madras 5, the learned counsel for the appellant submits that permission of custom was necessary to adopt the daughters son. Relying on AIR 1985 Madras 5, the learned counsel for the appellant submits that permission of custom was necessary to adopt the daughters son. To this, the learned counsel for the respondent submits that this decision does not govern the adoptions taking place under Benaras School of Mitakshra Hindu Law. Relying on AIR 1962 (S. C.) 351, he submits that the law provides that a daughters, son can be validly adopted to a person governed by the Benaras School of Mitakshara Hindu Law and that decision of the Hon'ble Supreme Court is binding on all Courts. In this respect he has drawn my attention to Article 141 of the Constitution of India and 1979 R.D. (H. C.) 49. He further submits that from the registered adoption deed it is evident that adoption had taken place with the permission of Niranjan, husband, and the adoption deed dated 13-12-51 was more than twenty years old and as such was admissible in evidence under Section 90-A of the Indian Evidence Act without formal proof. Relying on 1974 R.D. 392 and 1968 R.D. 210, he says that for a twenty years old document no formal proof was necessary, that the adoption deed had been proved by the attesting witnesses and that all the ceremonies of adoption were performed. He says that this has been clearly stated in para 16 of the written statement that the adoption took place in accordance with Hindu Shastras and all ceremonies were performed. He further submits that the rule that the adoptive father should be capable of marrying the mother in her maiden state, has been examined and interpreted in AIR 1962 SC 351 , wherein it has been held that the rule of Ashwa-layana, extended by Nand Pandit in his book "Dattak Mimansa" was not the mandatory prohibition of Hindu Law in matters of adoption of a daughters son for the persons governed by the Benaras School of Mitakshra Hindu Law. This prohibition was only recommendatory and the adoption made against Virudh Sambandh rule was valid in law. He further submits that according to the Hon'ble Supreme courts decision, no permission of custom was necessary for adopting a daughters son. He further submits that the plea in regard to adoption was never raised before the courts below and as such this could not be raised at the stage of second appeal. He further submits that according to the Hon'ble Supreme courts decision, no permission of custom was necessary for adopting a daughters son. He further submits that the plea in regard to adoption was never raised before the courts below and as such this could not be raised at the stage of second appeal. Relying on 1973 R.D. P. 339 (D B H C) he says that this plea should have been raised at the earliest opportunity. Relying on 1980 R.D. 49 he submits that a new case cannot be set up against the pleadings by a party, and relying on 1984 R.D. 419 he submits that no amount of evidence will be looked into if a thing had been pleaded, Relying on 1974 R.D. 392 (H. C ) and 1968 R.D. 210 (D. B ) he submits that the registered adoption deed dated 13-12-51 had been duly proved and was admissible in evidence. Relying on 1941 R.D. 598 he submits that Wajibul Arz was not a conclusive piece of evidence regarding proof of custom. 5. I find that in this second appeal the only point that requires to be decided is whether Smt Ranno could adopt Ram Shankar, respondent no i, as he was the daughters son of Niranjan and as the mother of Ram Shankar she could not have been married with Niranjan in her maiden state. A similar question arose for decision before the Hon'ble Supreme Court in the case reported in AIR 1962 SC 351 . The learned counsel for the respondent has drawn my attention to paras 3, 4, 5, of the said decision of the Hon'ble Supreme Court in which the Hon'ble Supreme Court has examined the question of incongruity of marriage based on Virudh Sambandh and has come to the conclusion that this rule was not mandatory but it was recommendatory. This aspect has been summarised in the following observations by the Hon'ble Supreme Court : - "Is this rule mandatory. In other words, would a marriage of a girl standing in the Virudha Sambandh relationship to the bridegroom be invalid we are not satisfied that this is the position in law. This aspect has been summarised in the following observations by the Hon'ble Supreme Court : - "Is this rule mandatory. In other words, would a marriage of a girl standing in the Virudha Sambandh relationship to the bridegroom be invalid we are not satisfied that this is the position in law. It is striking that though the numerous Dharma Sutras and Grihya Sutras deal at great length with the question of the girl who can be taken in marriage not one of them with the solitary exception of Ashvalayana has anything to say about Virudha Sambandh." In para 10 of the Judgement, their Lordships have observed that Mr. Jha irenes that when a positive statement is followed by a negative statement, the negative statement should always be held to contain a Prohibitory mandate. Thus, he says that as after saying y{k.; ojka y{k.korha dU;ka ioh;Rxh; " mi;PNr" says next " vlfi.Mkjk xxka=tk; fo:) lEcU/kk xekZ ;PNar" the rule contained in this latter portion should be held to be mandatory. We can find no Justification either in the modern rules of interpretation or in the rules of interpretation of the old Hindu Shastras for such a view. One instance where negative rule following a positive direction on this very subject of marriage can not possibly be considered to be mandatory can be found in Yajnavalkya's text: - vfoLrqr czgEp;kZa y{k.;kafL=xk;xqn ogsrA vuY;iwfoZdka dLrkxjk fi.Mka iokZ;Zlksx~AA vjsfx.kksa ekr`erhx lekukFkZ xks=tke~A "Let him whose life as bachelor is unsullied, marry a wife who possesses good qualities, who has not been enjoyed by another, who is beautiful who is not suffering from any complaints, who has brothers and who does not belong to the family descended from the same primitive guide." In para 16 their lordships have said that we are not aware of any decision in any of the High court Where Nanda Pandits rule against Virudha Sambandha adoption has been considered to be mandatory prohibition. Their Lordships have finally held that adoption cannot be said to be invalid if legal marriage is not possible between the person for whom adoption is made and the mother of the boy who is adopted in her. 6. The learned counsel for the appellant has drawn my attention to the decision reported in AIR 1985 Mad. 5 . Their Lordships have finally held that adoption cannot be said to be invalid if legal marriage is not possible between the person for whom adoption is made and the mother of the boy who is adopted in her. 6. The learned counsel for the appellant has drawn my attention to the decision reported in AIR 1985 Mad. 5 . This is not applicable to the facts oF the instant case as that decision relates to the Madras School of Hindu Law, whereas the instant case relates to Banaras School of Hindu Law. In Chapter IX, Sloak 168 of Manu Smriti the definition of adopted son has been given as below. ekrk firk n/;krka ;efnz% iq=HkkikfnA ln`'ka izfrla;qDra l ls;ks nf=e% lqrAA Chapter 1 (168) In the time of calamity if the mother or father give away their son happily with sankalp with water, then that son is said to be the adopted son. Here no such distinction or Virudh Sambandh has been laid down by Manu and as such it can be said that adoption could take place if the parents of the son were ready to give him with happiness to another person. Hence, it is held that Smt. Ranno could adopt Ram Shanker as her son. The ceremonies as provided for adoption were established to have been performed as has been held by the learned Additional Commissioner in his order under challenge. In the adoption deed it has been mentioned that the adoption was being done in accordance with the wishes of the late husband of Smt. Ranno. It is also held that the adoption deed dated 13-12-51 was admissible in evidence and raises a presumption of valid adoption as provided under Section 16 of the Hindu Adoption and Maintenance Act, 1956. Section 16 reads as under : - "16. (1) Where any document registered under any law for the time being in force is produced before any Court purporting to record an adoption made and is signed by the person giving and the person taking the child in adoption, the Court shall presume that the adoption has been made in compliance with the provisions of this Act unless and until it is disproved. (2) In case of an adoption made on or after the first day of January, 1977, no Court in Uttar Pradesh shall accept any evidence in proof of the giving and taking of the child in adoption, except a document recording an adoption, made and signed by the person giving and the person taking the child in adoption, and registered under any law for the time being in force : Provided that secondary evidence of such document shall be admissible in the circumstances and the manner laid down in the Indian Evidence Act (Act I of 1872)." The conditions of adoption were fulfilled and consequently the adopted child, Ram Shanker, shall be deemed to be the child of her adoptive mother Smt. Ranno for all purposes with effect from the date of the adoption and after the death of Smt. Ranno he was entitled to inherit the property left by her. 7. I find that the learned Additional Commissioner has considered all the aspects of the matter and has examined the allegations of the parties and has come to the conclusion that the plea of adoption being invalid was never taken by the plaintiff-appellant and as such no amount of evidence in that respect could be produced and considered by the court below, even then since the question of adoption was legal question, that matter has been considered by the learned Additional Commissioner and that aspect of the matter has also been looked into by this Court. In view of this, I find that no illegality has been committed by the learned Additional Commissioner in allowing the appeal and setting aside the trial courts order. Consequently, this second appeal fails having no force and is dismissed. Costs will be borne by the parties.