Research › Search › Judgment

Calcutta High Court · body

2000 DIGILAW 627 (CAL)

Ranjit Kumar Jain v. Kamal Kumar Chowdhury

2000-12-12

Subhro Kamal Mukherjee, Tarun Chatterjee

body2000
JUDGMENT Subhro Kamal Mukherjee, J. This is an appeal by the plaintiff against the judgment and decree passed by a learned Judge of this Court dismissing a suit for declaration and injunction. 2. The plaint allegations are that the plaintiff is the natural born son of one Budhmull Jain alias Nehata (since deceased). On or about 30th January, 1956 he was adopted by his maternal grandfather Shew Karan Jain (Kathotia) also known as Siwraj Sing and the adoption of the plaintiff was duly recorded in a registered deed of adoption executed by the said Shew Karan Jain (Kathotia), the adoptive father of the plaintiff. One Radha Rani Devi also known as Radha Devi who was in the exclusive keeping of the adoptive father of the plaintiff was the owner of Premises No. 14/4, Sudhir Chatterjee Street, Calcutta and by a registered indenture of settlement executed on 14th February, 1971 she settled the aforesaid premises, inter alia, making the following provisions ;- a) The settler constituted herself as the trustee of the said trust and duly granted, transferred, assigned and conveyed said premises to the trustees; b) In the event of the death or retirement of the said trustee and of her incapacity to act, the said adoptive father of the plaintiff and failing him his eldest son shall be the trustee of the said trust and thereupon the said premises shall vest in him; Sri Shew Karan Jain the adoptive father of the plaintiff had left behind no other son than the plaintiff who died on 17th July, 1974 and shortly prior to his death, the defendants/ respondents entered the said premises and the defendant No.1 claimed to be an executor of a Will dated 14th July, 1974 executed by the settler. 3. The defendants contested the suit by filing a written statement, inter alia, denying that the plaintiff/appellant was the adoptive son of Shew Karan Jain (Kathotia) and contended that the deed of adoption was not executed in accordance with law and even if the deed of adoption was, in fact, executed in accordance with law even then in view of the relationship between the adoptive father and the adopted son, the adoption deed could not have been executed in view of the prohibition under the Hindu Law. The learned Judge by the impugned judgment and decree dismissed the suit holding that the plaintiff could not prove the deed of adoption but held that the deed of settlement dated 14th February, 1974 was a valid piece of document. The learned Judge further held that since the will dated 15th July, 1974 was already probated by a competent court of law, such probate was binding and as such the plaintiff was not entitled to any relief in the present suit. 4. Being aggrived thereby, the plaintiff has preferred the present appeal. Although several issues were tried at the trial, it was however, agreed by the learned counsels for the parties that the fate of the present appeal depends on the following issues : 1. Was the plaintiff in fact, adopted by Shew Karan Jain (Kathotia) as his son as alleged in paragraph 1 of the plaint? 2. Was the alleged adoption valid in law? 5. Before we proceed further, we may keep it on record that both the learned counsels conceded before us that if one of the issues, as mentioned herein above, are fond to be against the plaintiff then there would be no necessity for us to go into the other issues raised in the appeal. Such being the stand taken by the learned counsels for the parties, we restrict this judgment only on the issues referred to above. Shri R.N. Das in support of the appeal contended that admittedly the plaintiff and his adoptive father are Jains and as the Jains rejected the authority of the Vedas which forms the bedrock of Hinduism and denied the efficacy of various ceremonies which the Hindus consider essential, Jains are not Hindus and as such the ceremonies for a valid adoption are not necessarily to be formed in case of adoption of a Jain. In support of his contention, he has relied upon the decision in Commissioner of Wealth Tax, West Bengal vs. Shrimati Champa Kumari Singhi & Ors., reported in AIR 1968 Calcutta 74. Shri Das further argues that the plaintiff has categorically stated that he was adopted by the said Shew Karan Jain and in support of his contention submitted a deed of adoption which was registered on January 30, 1956 at Ladnu, Rajasthan. Shri Das further argues that the plaintiff has categorically stated that he was adopted by the said Shew Karan Jain and in support of his contention submitted a deed of adoption which was registered on January 30, 1956 at Ladnu, Rajasthan. It is not for the plaintiff to prove that there was a valid adoption, but it was for the person denying such adoption to prove that there was no adoption as contended by the plaintiff. Shri Das, also, submits that there was no particular form of giving and acceptance among the Jains and where in the registered deed of adoption, it is categorically mentioned that the boy had been given and received in adoption and nothing is shown where by it may be inferred that physical act could not take place as mentioned in the deed, a presumption does arise that the recitals in the deed to remain. In this connection Shri Das cited the decision in the case of Bhajan Das vs. Nanuram & Anr., AIR 1954 Rajasthan 17. 6. The decision in the case of Mt. Gulab vs. Devilal Gokal Chand, reported in AIR 1951 Rajasthan 136, has been cited to bring home the point that there is no general law relating to the ceremonies necessary for a valid adoption among the Jains of all types found in India and that the adoption among certain sects of Jains is a temporal arrangement and not a religious ceremony and is based upon customs. The case of Balinki Padhano & Anr. vs. Gopikrishna Padhano & Ors., reported in AIR 1964 Orissa 117, was cited to contend that the burden lies on the other side to show that the adoption did not take place. 7. Shri RP. Mitra, advocate contended, inter alia, that the decision in the case of Commissioner of Wealth Tax, West Bengal (supra) has been overruled by the Supreme Court in the case of the Commissioner of Wealth Tax, West Bengal vs. Shrimati Champa Kumari Singhi & Ors., reported in AIR 1972 SC 2119 , where the Supreme Court has categorically found that all through the legislative practice was to generally treat the Jains as included in the term Hindus in various statutory enactments; before the amendment and codification of major branches of Hindu Law, the undisputed position was that the Jains were governed by the Hindu Law modified by customs. With regard to the decision in the case of Bhajan Das (supra) Shri RP Mitra submits that the said decision was followed and explained by the same Division Bench in the case of Ram Prasad vs. Pannalal, reported in AIR 1954 Rajasthan 36, and both the said decisions are not applicable in the facts and circumstances of the case inasmuch as both the said cases relate to Marwar where the ceremony of giving and taking was not necessary at all and all that was necessary was a registered deed of adoption and as such the Division Bench of Rajasthan High Court strongly placed reliance on the registered deeds of adoption in those cases. Shri Mitra cited the case of Raja Mahadeua Royal vs. Raja Virabaave Chikka Royal & Ors., reported in AIR 1948 P.C. 114, and the case of Debakka Fakirreddi & Anr. vs. Giraddi Ramareddi & Ors., reported in AIR 1956 Bombay page 99 to contend that to constitute a valid adoption there must be evidence of giving and taking and the deed of adoption does not constitute substantive evidence to prove adoption and the said deed affords merely corroborative evidence about the factum of adoption. Shri RP. Mitra submits the deed of adoption has been produced, but to corroborate the allegation of adoption, however, no evidence about the actual giving and taking of the boy was adduced. Shri Mitra submits that the purported deed of adoption has not been properly proved and as such no reliance could be placed on it. 8. In order to appreciate the contentions of the respective parties as noted herein above, we are to take note of certain admitted facts. The plaintiff is the natural born son of the daughter of Shew Karan Jain who was the adoptive father of the plaintiff and the said Shew Karan Jain on or about 30th January, 1956 adopted the plaintiff and the adoption was duly recorded in a registered deed of adoption executed by the said adoptive father of the plaintiff. This deed of adoption dated 30th January, 1956 which was registered at Ladnu, Rajasthan was duly filed by the plaintiff in which it was categorically stated that "the l customs of taking in adoption and handling over in adoption and other customs in the brotherhood have been fulfilled. So you are my son from this day." This document was marked as Exhibit "A". So you are my son from this day." This document was marked as Exhibit "A". In cross examination it was suggested to the plaintiff that there was no ceremony of the adoption and in reply to such question the plaintiff stated that "there was ceremony of adoption and about 30 to 40 relatives were there; a function was arranged and all the people who attended were given food and all these things; it is customary in our society." 9. Golap Chandra Sarkar Shastry in his Tagor Law Lecture, Hindu Law of Adoption, (second edition, 1916) commented in respect of the ceremonies in a Jain adoption which is as under :"Ceremonies in Jaina adoption nor are any religious ceremonies necessary for a valid adoption amongst the Jainas who do not believe in the efficacy of rites prescribed by the Hindu shasters. The gift and acceptance of the person adopted are the only requisite ceremonies for a lawful adoption amongst them. "The act of adoption is called 'Godh-Iena' or 'taking on lap', by the Jainas, the Punjabis and others. The practice amongst the Jainas is to invite the kinsmen and the principal men of their caste in whose presence the son is adopted; a deed of adoption is executed, and after the gift and acceptance, the boy is dressed and is made to sit on the lap of the adoptive father or of a relation when the widow adopts, in the assembly of the relations and' the caste people, and the ceremony is finished by the distribution of betels, cocoanuts, etc. to the persons assembled. " 10. Maynes in his treatise on Hindu Law and Usage commented that the Jains have so generally adopted the Hindu Law that the Hindu Rules of adoption are applied to them in the absence of a contrary usage and adoptions are quite common among them. 11. It, therefore, clearly appears from the discussions of the aforesaid authorities that the Jains even before the amendment and codification of the major branches of the Hindu Law were governed by the Hindu Law modified by custom. 11. It, therefore, clearly appears from the discussions of the aforesaid authorities that the Jains even before the amendment and codification of the major branches of the Hindu Law were governed by the Hindu Law modified by custom. The Apex Court in the case of the Commissioner of Wealth Tax, West Bengal (supra) observed as under: "In Ambabai Bhaichand vs. Keshau Bandochand Gujar, IRL (1941) Bombay 250 : (AIR 1941 Bombay 233), the question was whether Jains were governed by Hindu Law of Inheritance (Amendment) Act, 1929 which applied to all persons governed by Mitakshara as modifies by the Mayukha. It was argued in that case that the Indian Succession (Amendment) Act of 1929 speaks of Jains as well as Hindus and sections 4 and 57 of the Indian Succession Act, 1925 also did the same. The Court pointed out that section 331 of the Indian Succession Act, 1865 did not make any separate mention of Jains and even then it had been held that the term 'Hindu' included Jains. the Hindu Wills Act of 1870 which applied to the temtories under the Lt. Governor of Bengal and the cities of Bombay and Madras no doubt mentioned Jains as well as Hindu being governed by certain sections of the Succession Act, 1865 and the Indian Succession Act, 1925 was a consolidating Act which repealed the previous Act of 1865 as well as the Hindu Wills Act of 1870. It was, therefore, probably thought necessary ex majore cautela to separately mention the Jains in the consolidating measure. However, in all the other enactments affecting the Hindu Law there was no separate mention of Jains along with the Hindus. The Jains were, therefore, governed by the Hindu Law of Inheritance (Amendment) Act, 1929. The mention of Jains separately in Article 25 of the Constitution was noticed in ILR (1954) Nagpur 30: (AIR 1953 Nagpur 70) and it was observed that the framers of the Constitution felt, having regard to the differences in the two faiths that an express mention might be made of all faiths ex abundanti cautela and to put the matter beyond all controversy, and that faith is one thing and law is another and the Constitution could not be taken to have undone the long series of decisions on the subject. Before the amendment and codification of major branches of Hindu Law by the four statutes, i.e. the Hindu Marriage Act, 1955, the Hindu Succession Act, 1956, the Hindu Minority and Guardianship Act, 1956, the Hindu Adoptions and Maintenance Act, 1956 the undisputed position was that the Jains were governed by the Hindu Law modified by custom and a Jain joint family was Hindu joint family with all the incidents attached to such a family under the Hindu Law. The legislative practice also was to generally treat Jains as included in the term 'Hindu' in various statutory enactments. Wherever Jains were mentioned in addition, it was by way of abundant caution. The' new statutes did not change the situation and it is not possible how the High Court in the judgment under appeal pressed them into service in support of its view. The fallacy underlying the reasoning of the High Court is that the artificial field of application of the law in those statutes shows that Jainism is not treated even as a form or a development of Hinduism. That is an erroneous approach. We are not concerned with the question whether Jains are a sect of Hindus or Hindu dissenters. Even if the religious are different, what is common is that all those who are to be governed by the provisions of these enactments are included in the term Hindu. They are to be governed by the same rules relating to marriage, succession, minority, guardianship, adoption and maintenance as Hindus. The statutes thus accord legislative recognition to the fact that even though they are to be governed by the same laws as the Hindus." 12. The learned Trial Judge has relied upon the case of Shoshinath Ghosh & Ors. vs. Krishna Sundari Dasi, reported in ILR 6 Calcutta 381, to substantiate the principles that although it has been held that in the case of sudras no ceremonies except giving and taking of the child is necessary, mere execution of the deed is not sufficient inasmuch as in order to prove the adoption very cogent evidence as to whether there had been a formal and regular adoption is necessary and adoption simply by the deed and without that corporeal delivery and acceptance of the child, which is universally treated as the essential of an adoption, cannot be valid. The plaintiff was adopted in 1956 and a registered deed of adoption was executed on January 30, 1956, which has been produced by the plaintiff: 13. The plaintiff was giving evidence sometime in February 1982, and as such the minor discrepancies in evidence as to the ceremonies performed at the time of adoption ought to be ignored when the factum is disputed long after the ceremony and when there is a registered deed of adoption. The detendants are not related to the plaintiff nor they belong to the same community and as such they were not competent to dispute as to what has transpired in 1956 at the time of adoption of the plaintiff by his adoptive father. 14. In view of the materials on record and in view of our discussions made herein above, we are unable to agree with the finding of the learned Trial Judge that the plaintiff had failed to give sufficient evidence of the ceremony of giving and taking at the time of adoption or that the plaintiff had failed to prove the deed of adoption properly; we are also unable to agree with the finding of the Trial Judge that the plaintiff had failed to give any evidence whatsoever regarding the ceremony that have taken place at the time of adoption. That being the position, we are not in agreement with the decision of the learned Trial Judge in respect of issue No.1 and held that the plaintiff has sufficiently proved the dead of adoption as contained in paragraph 1 of the plaint. In spite of the aforesaid finding of the Trial Court, we are still of the view that the plaintiff was not entitled to any relief in this case. Still the question remains whether the adopted father of the plaintiff, Shew Karan Jain, could validly adopt him in law inasmuch as the plaintiff was admittedly the son of his daughter. In view of our discussions made herein above, we keep it in our mind that both the plaintiff and his adoptive father being Jains was governed by the Hindu Law as modified by custom. 15. Shri Rabindranath Das, learned Advocate, in support of his contention that a daughter's son could be adopted by a Jain has cited the case of Mt. Gigi Agarwalani & Anr. vs. Mt. Panna Agarwalani & Ors., reported in AIR 1956 Assam page 100. 15. Shri Rabindranath Das, learned Advocate, in support of his contention that a daughter's son could be adopted by a Jain has cited the case of Mt. Gigi Agarwalani & Anr. vs. Mt. Panna Agarwalani & Ors., reported in AIR 1956 Assam page 100. It is true that the learned Judges of the Assam High Court in the said decision recorded that the rule of prohibited relation for adoption does not obtain amongst the Jain who may, therefore, adopt a daughter's son. Upon a careful reading of said judgment, it appears to us that the said observation was an obiter inasmuch as the issue involved in the said case was whether the widow among the Marwaris was entitled to select a boy for adoption including the widow's brother's son. In any event of the matter, the plaintiff has failed to prove the custom, to our satisfaction, that in their community it was permissible to adopt a daughter's son. 16. The rule of prohibited decrees or adoption is understood to consist in the impossibility of marriage between the adopter father and the adoptees' mother in her maiden state by reason of their relationship. The adopted son is deemed to have been actually begotten by the adopter on his natural mother. Therefore, the adoption of the daughter's son has been declared invaid as expressly prohibited in Hindu Law. It has been affirmed by a singularly strong series of authorities in all parts of India prohibiting adoption of the son of the daughter. The plaintiff has failed to produce sufficient evidence on record to establish that it was customary in their community to adopt a daughter's son. It was suggested to the plaintiff during his examination that it was not permissible for anyone belonging to Rajasthan to adopt ones daughter's son and the plaintiffs reply was that he did not know the law and contended that according to their custom and system, they were allowed to take in adoption the son of the daughter. When he was asked to give one instance of any adoption of a daughter's son amongst Oswal Caste in Rajasthan, he categorically stated that he could not say that offhand. The plaintiff has failed to prove the custom permitting an Oswal Jain to take his daughter's son in adoption. When he was asked to give one instance of any adoption of a daughter's son amongst Oswal Caste in Rajasthan, he categorically stated that he could not say that offhand. The plaintiff has failed to prove the custom permitting an Oswal Jain to take his daughter's son in adoption. We are constrained to hold that although the plaintiff has proved his adoption by Shew Karan Jain, but as the plaintiff was admittedly the daughter's son of said Shew Karan Jain, such adoption is invalid in law. Since the adoption of the plaintiff was invalid in law, the plaintiff cannot be regarded as son of the said Shew Karan Jain and as such not entitled to act as trustee in respect of the trust estate of Radha Rani Devi, since deceased. 17. In view of our finding, made herein above, that Shew Karan Jain under the law could not adopt the plaintiff as his adopted son being the son of his daughter. It is needless for us to go into the other issue as the plaintiff was not entitled to maintain the suit on the basis of the adoption deed which has been found by us to be not valid in view of the prohibited relationship between the adoptive father of the plaintiff and the adopted son, the plaintiff. Accordingly this appeal is dismissed. There will be no order as to costs. Learned Advocate for the appellant prays for stay of the operation of the judgment, such prayer is considered and refused. Xerox certified copy of this judgment be made available to the parties. Appeal is dismissed.