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2008 DIGILAW 988 (CAL)

Rajendra Prasad Shewda v. Kishori Debi Joshi

2008-11-04

BHASKAR BHATTACHARYA, RUDRENDRA NATH BANERJEE

body2008
JUDGMENT: BHATTACHARYA, J. (1.) This appeal is at the instance of the defendant Nos. 1 and 2 in a suit for declaration of title and recovery of possession and is directed against the judgment and decree dated 31st January, 1986 passed by the Assistant District Judge, Purulia, in Title Suit No. 106 of 1971, thereby declaring that the plaintiff had title in the suit property to the extent of eight annas and that the defendant No. 1 had the remaining eight annas. The Court further granted a decree of joint possession of the parties after rejecting the prayers of the plaintiff for declaration of title to the extent of sixteen annas and recovery of possession. (2.) Being dissatisfied, the defendant Nos. 1 and 2 have come up with the present first appeal while the plaintiff has filed a cross-objection claiming that the learned Trial Judge ought to have decreed the suit in full as prayed for in the plaint instead of declaring only half-share and the decree for joint possession in the modified form. (3.) The case made out by the plaintiff-respondent in the aforesaid suit out of which the present appeal arises may be summed up thus: (a) The suit premises belonged to one Jagannath Joshi. He was a Marwari Brahmin. The property was originally acquired by one Mangturam Marwari through a sale-deed dated 15th July, 1940. Jagannath Joshi acquired the property from Mangturam Marwari but instead of execution of a sale-deed, a registered-deed of Nadabi dated 19th July, 1940 was taken from Mangturam Marwari in the benam of his wife, viz. Moni Devi in order to avoid unnecessary expenses of payment of stamp duty. Jagannath Joshi had other brothers and so, in order to avoid any possible claim by the other brothers in future, he acquired the property in the name of Moni Debi, his wife. The wife of Jagannath Joshi had no source of income nor had she any separate fund of her own. Jagannath Joshi was a man of means and had sufficient income and he paid the consideration amount.of Rs. 2,900/- and thus, acquired valid title to the property and remained in possession till his death in the month of October, 1953. (b) The property was entered in the Municipal Register in the name of Moni Devi as per deed in order to maintain the benami character of the transaction. 2,900/- and thus, acquired valid title to the property and remained in possession till his death in the month of October, 1953. (b) The property was entered in the Municipal Register in the name of Moni Devi as per deed in order to maintain the benami character of the transaction. In fact, Jagannath Joshi all along paid the municipal taxes. The name of Moni Devi was also entered in the Land Registration Department on the selfsame ground and the charges were paid by Jagannath Joshi. The property described in Schedule 1 of the plaint is a one-storied building consisting of 10 rooms besides one room above the stairs and was the northern half of one holding at the time of purchase. The southern half was purchased by one Mahadeb Marwari of Purulia. (c) After the purchase, Jagannath Joshi let out the portion of the holding described in Schedule 1 and used to realise rent from the tenants and possessed the other portion of the holding in khas. A portion of the holding described in Schedule 2 was let out to Ramniwas Bharech as a monthly tenant who paid Rs. 20/- for the portion used for residence and Rs. 18/-for the portion used for the business purpose and, thus, the total rent was Rs. 38/-payable according to Hindi calendar month which was subsequently enhanced to Rs. 55/-. After the death of Ramniwas Bharech, his sons and widow were in occupation of the Schedule 2 property and the defendant No. 3 Ram Bhagat Bharech was the Karta of the joint family consisting of himself, his brother and mother. (d) A portion of Schedule 1 property was in occupation of the defendant No. 2 as a monthly tenant on payment of Rs. 15/- according to Hindi calendar month which is described in Schedule 3. The remaining portion of the holding was in khas possession of the plaintiff and the daughter of Jagannath Joshi which is described in Schedule 4 of the plaint. (e) Jagannath Joshi had only one daughter named Gomoti Debi. Jagannath Joshi adopted his brothers son, viz. Sitaram Joshi in Rajasthan in the year 1942. Sitaram Joshi was the natural son of Sanwalram Joshi and he was given in adoption by his natural mother, the widow of late Sanwalram when he was a boy of 14 years. (e) Jagannath Joshi had only one daughter named Gomoti Debi. Jagannath Joshi adopted his brothers son, viz. Sitaram Joshi in Rajasthan in the year 1942. Sitaram Joshi was the natural son of Sanwalram Joshi and he was given in adoption by his natural mother, the widow of late Sanwalram when he was a boy of 14 years. (f) Thereafter, Jagannath Joshi brought Sitaram Joshi to Purulia and the said Sitaram began to live with his adoptive parents at Purulia. He got his education at Purulia for sometime and subsequently, Jagannath placed him employed in the firm of Bishandayal Ramjiban of Purulia where he served for sometime. The plaintiff was married to Sitaram Joshi in the month of May, 1945 but unfortunately, the plaintiffs husband died in the month of August following the said year. Thereafter, the plaintiff used to reside with her parents-in-law at Purulia and sometimes, lived at her fathers place at Motihari. Jagannath Joshis daughter, viz. Gomoti Debi, was married to Brijlal Shewda, the brother of the defendant No. 2, viz. Debi Prasad Shewda, but he became insane before the plaintiffs marriage and he was in the lunatic asylum at Ranchi until his death. Therefore, Gomoti Debi all along stayed with her parents. Brijlal Shewda died in the month of May, 1965 and Gomoti Debi used to reside with her mother as above. (g) On the death of Jagannath Joshi, the property described in Schedule 1 devolved upon his widow Moni Devi and the plaintiff as his predeceased adopted sons widow in equal shares. Moni Devi being the mother-in-law of the plaintiff used to realise rent from tenants on behalf of herself as also on behalf of the plaintiff and pay the municipal taxes and other charges for the property described in the Schedule 1 on behalf of both the co-sharers. The electric installation in the holding was applied by Jagannath Joshi but the connection was given by the Electric Company after his death. (h) The plaintiff, after the death of Moni Devi, came to learn that Moni Devi executed a Will regarding the property described in Schedule 1 and gave a life-estate of the same to Gomoti Debi without any power of alienation. Gomoti Debi also applied for the Letters of Administration of the Will in the Court of the District Judge, Purulia, which was registered as Letters of Administration case No. 4 of 1966. Gomoti Debi also applied for the Letters of Administration of the Will in the Court of the District Judge, Purulia, which was registered as Letters of Administration case No. 4 of 1966. The said case was subsequently dismissed on the death of Gomoti Debi. (i) After the death of Moni Devi, which took place in the month of August 1963, her half share in the property devolved upon her daughter Gomoti Debi and on her death, the same devolved upon the plaintiff as the heir of Jagannath Joshi. Thus, the plaintiff became the full owner of the entire property on the death of Gomoti Debi. After the death of Moni Devi, Gomoti Debi used to realise rent from tenants on behalf of herself as also on behalf of the plaintiff as she was much older than the plaintiff and the plaintiff used to live sometimes at Purulia and sometimes at Motohari. The plaintiff, at times, also realised rent. Gomoti Debi paid municipal taxes of the property on behalf of herself as also on behalf of the plaintiff. Gomoti Debi suffered from cancer for about a year and died on 24th January, 1967. (j) The defendant No. 2 was inducted as a monthly tenant in respect of portion of the premises, which is described in Schedule 3, and he had been residing with his family since July, 1966. The defendant No. 1 is the son of the defendant No. 2. The plaintiff went to Motihari sometime in the month of December, 1966 and subsequently came back to Purulia on 24th January, 1967 and found that Gomoti Debi died a few hours before her arrival. (k) Thereafter, the defendant No. 1 wanted to create trouble and set up a claim over the Schedule 1 property on the ground that the property belonged to Gomoti Debi and the defendant No. 1 had got the property as he was the adopted son of Gomoti Debi. Although, all such allegations are false and unfounded, the Marwari Brahmin Samaj of Purulia intervened and locked two rooms, which were in khas possession of the plaintiff and Gomoti Debi, and the said rooms were still under the lock and key in charge of proforma defendant No. 4. Those two rooms are described in Schedule 5 of the plaint. (l) Dispute regarding title to the property of Schedule 1 of the plaint was referred to arbitration. Those two rooms are described in Schedule 5 of the plaint. (l) Dispute regarding title to the property of Schedule 1 of the plaint was referred to arbitration. Two arbitrators were selected by the plaintiff and the other two, by the defendant Nos. 1 and 2 and the arbitrators selected defendant No. 4 as umpire. Ultimately, the decision was in favour of the plaintiff but in the meantime, after reference to arbitration, the defendant No. 1 retracted from the reference on untrue allegations. (m) Gomoti Debi was not the full owner of the Schedule 1 property and she had only half share, which devolved upon the plaintiff on her death. The plaintiff had previously half share, which she inherited from her father-in-law. Therefore, the plaintiff was the full owner of the entire building after the death of Gomoti Debi. (n) Gomoti Debi never adopted the defendant No. 1 as a son and there was never any actual ceremony of giving and taking of the defendant No. 1 by way of adoption. Moreover, the defendant No. 1 was not fit to be adopted as he was more than 15 years old at the time the alleged adoption was taken. The alleged deed of adoption dated 31st May, 1966 was set up by the defendant Nos. 1 and 2 and was fraudulent, illegal, collusive and inoperative. It came into existence without the knowledge and consent of Gomoti Debi. Moreover, the plaintiff came to learn that the defendant Nos. 1 and 2 managed to bring into existence a deed of gift dated 10th January, 1967 said to have been executed by Gomoti Debi but the said deed is also fraudulent, illegal and an inoperative document brought into existence without the knowledge of Gomoti Debi. Gomoti Debi was physically and mentally incapable of executing any deed since one year before her death. The defendant No. 1 had no title to the property and was not in possession of the property as owner of the same. (o) The plaintiff had been realising rent of the Schedule 2 property from the proforma defendant No. 3 but the defendant No. 1 in order to claim title to the property brought a Title Suit No. 206 of 1967 against the defendant No. 3 for eviction from the Schedule 2 property in the Court of Munsif of Purulia. (o) The plaintiff had been realising rent of the Schedule 2 property from the proforma defendant No. 3 but the defendant No. 1 in order to claim title to the property brought a Title Suit No. 206 of 1967 against the defendant No. 3 for eviction from the Schedule 2 property in the Court of Munsif of Purulia. The said suit was contested by the defendant No. 3 but unfortunately, the said suit was decided in favour of the defendant No. 1. The said Title Suit No. 206 of 1967 was really a title suit in the garb of eviction suit. By the decision of that suit, a cloud has been cast upon the title of the plaintiff in the Schedule 1 property. Moreover, the defendant No. 2 also denied the title of the plaintiff and refused to pay rent of the premises described in Schedule 3 of the plaint, which was in occupation of the defendant No. 1 and other members of his family as a monthly tenant. (p) The defendant No. 1 being emboldened by the decree of the said title suit had been giving out that the plaintiff had no right, title and interest in the property. The said decree passed in the suit for eviction against the defendant No. 3 was not binding upon the plaintiff as she was not a party to the suit and as dispute had been raised as regards the plaintiffs title, she had been compelled to file the present suit. (4.) The suit was contested by the defendant No. 1 by filing written statement and his defence may be summed up thus: (1) It was absolutely false that the suit property as described in Schedule 1 belonged to Jagannath Joshi. The said property was acquired by Moni Devi, the widow of Jagannath Joshi, from her own fund by a registered sale-deed dated 15th July, 1940 in the benami of Mangturam Marwari who executed and registered a Nadabi deed in favour of Moni Devi on 19th July, 1940. Mangturam was never the real purchaser nor did Jagannath Joshi purchase the property from Mangturam and the allegation, that instead of sale-deed, a registered deed of Nadabi was executed by Mangturam to save unnecessary expenditure is false. (2) There was no occasion on the part of Jagannath Joshi to acquire any property in the benam of his wife, Moni Devi. Mangturam was never the real purchaser nor did Jagannath Joshi purchase the property from Mangturam and the allegation, that instead of sale-deed, a registered deed of Nadabi was executed by Mangturam to save unnecessary expenditure is false. (2) There was no occasion on the part of Jagannath Joshi to acquire any property in the benam of his wife, Moni Devi. None of the brothers of Jagannath Joshi was alive at the time of the acquisition of the property and consequently, the allegation, that in order to avoid any possible claim by the brothers, Jagannath Joshi acquired the property in the benam of Moni Devi, was utterly unfounded. (3) Moni Devi was a Brahmin lady and respected by the Marwari Community of the town of Purulia. At the time of marriage ceremony and birth in the families of Marwari Community, they used to give various presentations in the form of money and valuable ornaments to Moni Devi. In this way, she had earned considerable money and golden ornaments with her and she was financially competent to acquire the property. The consideration money of the sale-deed was paid by Moni Devi and not by Jagannath Joshi, her husband, as falsely alleged. Since the time of purchase, Moni Devi was all along in possession of the entire property described in Schedule 1 in khas possession and by inducting tenant until her death in the month of August, 1963. (4) After purchase, Moni Devi got her name recorded in the Municipal Register and used to pay the municipal taxes. She also got her name recorded in the Land Registration Department and used to pay the ground rent and other public charges. The defendant No. 2 had been occupying a portion of the premises consisting of bedroom and one kitchen room described in Schedule 1 on monthly rent of Rs. 20/-under the defendant No. 1. The defendant No. 2 never held any portion as a tenant under the plaintiff. No portion of the property described in Schedule 1 was in possession of the plaintiff nor was she ever in possession of any portion. (5) Sitaram Joshi was never the adopted son of Jagannath. The allegation that Sitaram Joshi was adopted by Jagannath Joshi in the year 1942 at Rajasthan was false and motivated and had been invented to make an attempt to claim title over the property. (5) Sitaram Joshi was never the adopted son of Jagannath. The allegation that Sitaram Joshi was adopted by Jagannath Joshi in the year 1942 at Rajasthan was false and motivated and had been invented to make an attempt to claim title over the property. There was never any ceremony of adoption as required under law nor was any formality as required to be observed for the alleged adoption performed. Swalram, the father of Sitaram, had a sweetmeat shop in village Mundawa within P.S. Jhunjhun in Rajasthan. Sitaram used to work with his father Swalram and thereafter, he came to Purulia in search of service. Sitaram was not educated in Purulia and he never read in any Institution in Purulia. Sitaram stayed in Purulia for a very short time. Shortly after the marriage with the plaintiff, Sitaram died and the plaintiff never resided in Purulia with Jagannath Joshi or Moni Devi and there was no reason for the same inasmuch as Jagannath Joshi was not her father-in-law nor was Moni Devi her mother-in-law. (6) Brijlal Shewda, the elder brother of the defendant No. 2, married Gomoti Debi, the daughter and only child of Jagannath Joshi and Moni Devi. Brijlal became insane about 15 years after his marriage. He was in lunatic asylum but he did not die there. Gomoti Debi, after the marriage, used to stay with her husband at Calcutta but when he completely became insane and the disease appeared to be incurable, she began to reside with her parents and occasionally, used to go to her father-in-laws house. The plaintiff never inherited nor could she inherit any property left by Jagannath Joshi. Besides, the suit property belonged to Moni Devi and consequently, there was no question of devolution of that property after the death of Jagannath Joshi. The property was the absolute property of Moni Devi and in any view of the matter, the plaintiff did not inherit any interest in the property described in Schedule 1. After the death of Moni Devi, the entire property devolved upon Gomoti Debi, her daughter and only child alone and she was in exclusive possession of the property described in Schedule 1. She used to realise rent from the tenants on her own account and not on behalf of the plaintiff. After the death of Moni Devi, the entire property devolved upon Gomoti Debi, her daughter and only child alone and she was in exclusive possession of the property described in Schedule 1. She used to realise rent from the tenants on her own account and not on behalf of the plaintiff. (7) The defendant was taken in adoption by Gomoti Debi on 17th May, 1966 after observing all the formalities required under law. The defendant was at that point of time aged 14 years and half being born on 12th December, 1951. Gomoti Debi also executed a deed of gift in favour of the defendant No. 1 in respect of the property described in Schedule 1 on 10th January, 1967 and by that gift, she gave away the property described in Schedule 1 to the defendant No. 1. Thus, the defendant No. 1 became the absolute owner of the property not only by way of inheritance as an adopted son but also by deed of gift. The suit was, therefore, liable to be dismissed. (5.) At the time of hearing of the suit, the plaintiff examined twelve witnesses in support of her claim while the defendant no. 1 examined eight witnesses. (6.) The learned Trial Judge by the judgment and decree impugned herein decreed the suit in part thereby declaring that the plaintiff had eight annas share in the suit property and the defendant No. 1 had also eight annas share. The learned Trial Judge declared joint possession of the parties. (7.) The learned Trial Judge, while arriving at such conclusion, specifically held that the suit property was acquired by Jagannath Joshi in the benam of his wife, namely, Moni Devi, and that Moni Devi did not acquire the same from her own fund. The learned Trial Judge further held that Sitaram was the adopted son of Jagannath Joshi and that the said adoption was legal and valid. Similarly, the learned Trial Judge also held that Gomoti Debi took defendant No. 1 in adoption as her son. The learned Trial Judge specifically held that the defendant No. 1 was born on 12th December, 1951 and was below 15 years of age on the date of adoption by Gomoti Debi. Similarly, the learned Trial Judge also held that Gomoti Debi took defendant No. 1 in adoption as her son. The learned Trial Judge specifically held that the defendant No. 1 was born on 12th December, 1951 and was below 15 years of age on the date of adoption by Gomoti Debi. As regards the issue whether the deed of gift executed by Gomoti Debi in favour of the defendant No. 1 was valid, legal and bona fide, the learned Trial Judge found that the said deed of gift was voluntarily executed in favour of the defendant No. 1 and Gomoti Debi had sufficient knowledge as to the contents of the document. (8.) In the light of the aforesaid findings recorded by the learned Trial Judge, he was of the view that on the death of Jagannath Joshi, the suit property devolved upon his widow Moni Devi and the plaintiff, his predeceased adopted sons widow, in equal share and on the death of Moni Devi, her eight annas share was inherited by her daughter, Gomoti Debi alone excluding the plaintiff, the widow of the pre-deceased adopted son, and on the death of Gomoti Debi, her share in the property devolved upon the defendant No. 1 alone as he was found to be the adopted son of Gomoti Debi. (9.) Being dissatisfied, the defendant Nos. 1 and 2 have preferred the present first appeal while the plaintiff has filed a cross-objection claiming the relief in full and challenging the findings of the learned Trial Judge as regards the title of the defendant to the extent of eight annas, that the defendant No. 1 was the adopted son of the Gomoti and that the deed of gift executed by Gomoti Debi in favour of defendant No. 1 was a valid one. (10.) Mr. Roy Chowdhury, the learned Senior Advocate appearing on behalf of the defendants, has attacked the findings of the learned Trial Judge on the issue of ownership of the property and the alleged adoption of Sitaram and has contended that the learned Trial Judge should have dismissed the suit in its entirety. (11.) According to Mr. Roy Chowdhury, the suit property being acquired undisputedly by a deed in the name of Moni Devi, onus is upon the plaintiff to show that the property was really purchased by her husband. By referring to the plaint case, Mr. (11.) According to Mr. Roy Chowdhury, the suit property being acquired undisputedly by a deed in the name of Moni Devi, onus is upon the plaintiff to show that the property was really purchased by her husband. By referring to the plaint case, Mr. Roy Chowdhury points out that in the plaint it was alleged that the property was acquired by one Mangturam Marwari through a registered sale-deed dated 15th July, 1940 and Jagannath Joshi acquired the same from Mangturam Marwari but instead of a sale-deed, a registered deed of Nadabi dated 19th July, 1940 was taken from Mangturam Marwari in the benam of his wife, Moni Devi, in order to avoid unnecessary expenses. (12.) By referring to the aforesaid statements, Mr. Roy Chowdhury submits that the deeds, however, show that the property was really purchased in the name of Mangturam Marwari from previous lawful owner and Mangturam Marwari, by the Nadabi deed admitted that Moni Devi was the real owner. According to Mr. Roy Chowdhury, if Jagannath Joshi was the real owner, then there was no justification for execution of, first, a sale- deed in the name of Mangturam Marwari, and then, a Nadabi deed, by Mangturam Marwari in favour of Moni Devi. Mr. Roy Chowdhury further contends that no reason has been assigned by the plaintiff justifying the benami transaction; in other words, according to Mr. Roy Chowdhury, no plausible motive behind the alleged benami was proved. Mr. Roy Chodhury further submits that in the original sale-deed in favour of Mangturam Marwari, the owner specifically recorded that the property was sold to the said gentleman and there was no indication that Jagannath Joshi paid consideration money. He, therefore, prays for setting aside the findings recorded by the learned Trial Judge. Mr. Roy Chowdhury submits that if Moni Devi is found to be the real owner, in such circumstances, even if Sitaram is found to be the adopted son of Jagannath Joshi, the property will not devolve upon the plaintiff, the alleged widow ot the predeceased adopted son. (13.) Mr. Roy Chowdhury next assailed the finding of the learned Trial Judge as regards the adoption of Sitaram by Jagannath Joshi. Mr. Roy Chowdhury submits that except one witness, namely P.W.-2, no other person has claimed to be the eyewitness of such adoption. (13.) Mr. Roy Chowdhury next assailed the finding of the learned Trial Judge as regards the adoption of Sitaram by Jagannath Joshi. Mr. Roy Chowdhury submits that except one witness, namely P.W.-2, no other person has claimed to be the eyewitness of such adoption. By pointing out the statement made by P.W.-2 in cross-examination wherein she stated that she could not say how old the witness himself was at the time of adoption of Sitaram by Jagannath Joshi, Mr. Roy Chowdhury submits that such a witness should not be believed. Even the said witness, Mr. Roy Chowdhury points out, could not remember the year of her marriage and even could not tell the respective ages of her own sons at the time of their marriage. (14.) Mr. Roy Chowdhury further contends that no document has been produced on behalf of the plaintiff indicating that at any point of time, Sitaram had written any letter to Jagannath Joshi or Moni Devi by describing them as his father or mother respectively. Even the school record of Sitaram could not be produced demonstrating whether Jagannath Joshi was described as the father of Sitaram although according to the plaint case Sitaram was educated in Purulia for some time. (15.) Mr. Roy Chowdhury further submits that the parties being Brahmin, according to the then law, after the Upanayan, no person could be validly taken in adoption and in this case, even according to the plaintiff, her husband was aged more than 14 years and therefore, it is apparent that the adoption of Sitaram had been allegedly taken after crossing the usual age of Upanayan and consequently, in the absence of any evidence showing that after the alleged adoption, Jagannath had made arrangement of the ceremony of Upanayan of Sitaram, valid adoption of Sitaram had not been proved in accordance with law. Mr. Roy Chowdhury further contends that according to the then law of adoption among the Brahmins, the brothers son could not be taken in adoption as there was prohibited decree of relationship between the natural mother of the adopted son and the adoptive father. Mr. Mr. Roy Chowdhury further contends that according to the then law of adoption among the Brahmins, the brothers son could not be taken in adoption as there was prohibited decree of relationship between the natural mother of the adopted son and the adoptive father. Mr. Roy Chowdhury, therefore, prays for dismissal of the suit in its entirety on declaration of sixteen annas share of the defendant No. 1 in the property by virtue of inheritance from Gomoti Devi, the only daughter of Moni Devi as well as by the deed of gift executed by her in his favour. (16.) Mr. Banerjee, the learned Senior Advocate appearing on behalf of the respondent, has, however, opposed the aforesaid contentions advanced by Mr. Roy Chowdhury and has contended that in the facts of the present case, the learned Trial Judge ought to have held that there was no valid adoption of Rajendra Prasad Shewda by Gomoti Debi and that the deed of gift itself was also vitiated by fraud as at the time of execution of the alleged deed of gift, Gomoti Debi was suffering from cancer and was physically and mentally incapable of execution of a deed of gift. Mr. Banerjee further contends that if Rajendra was really adopted by Gomoti Debi, there was no just reason for execution of a deed of gift by Gomoti in favour of Rajendra. Mr. Banerjee further contends that the deed of gift itself shows that Rajendra was described as major, although, according to the case of the defendant No. 1 himself, he was born in the year 1951. Mr. Banerjee in this connection has relied upon the school registrar showing that Rajendra was really born in the year 1950 and as such, according to him, at the time of the alleged adoption he was above 15 years of age. Mr. Banerjee justifies the finding of the learned Trial Judge as regards ownership of the suit property and the legality of adoption of the husband of the plaintiff by Jagannath. He, therefore, prays for dismissal of the appeal and allowing the cross-objection filed by his client by passing a decree as prayed for in the plaint. (17.) The first question that arises for determination in this appeal is whether the property was purchased by Jagannath in the benam of his wife. He, therefore, prays for dismissal of the appeal and allowing the cross-objection filed by his client by passing a decree as prayed for in the plaint. (17.) The first question that arises for determination in this appeal is whether the property was purchased by Jagannath in the benam of his wife. (18.) In order to find out whether a particular transaction is really a benami transaction, a Court is required to bear in mind the following well-settled principles :(1) The burden of showing that a transfer is a benami transaction lies on the person who asserts that it is such a transaction ; (2) if it is proved that the purchase money came from a person other than the person in whose favour the property is transferred, the purchase is prima facie assumed to be for the benefit of the person who supplied the purchase money, unless there is evidence to the contrary; (3) the true character of the transaction is governed by the intention of the person who has contributed the purchase money and ; (4) the question as to what his intention was has to be decided on the basis of the surrounding circumstances, the relationship of the parties, the motives governing their action in bringing about the transaction and their subsequent conduct, etc. [See Binapani Paul v. Pratima Ghosh and Ors., (2007)6 SCC 100 ]. (19.) In the case before us, it has been established from the evidence on record that Jagannath had sufficient means to purchase the property by the paying the price mentioned in the deed and that his wife, viz. Moni Devi, was a mere housewife and had no other source of income. The plaintiff in her plaint stated that Jaganath purchased the property in the benam of his wife in order to avoid any possible claim in future by his brothers and that was the only motive indicated in the plaint for the alleged benami. The defendant has, however, denied such claim and has contended that at the time of purchase of the property, all his brothers were dead and thus, there was no such apprehension. Such assertion of the defendant No. 1 has not been disputed by the plaintiff by giving any suggestion to the contrary in cross-examination of D.W-1. The defendant has, however, denied such claim and has contended that at the time of purchase of the property, all his brothers were dead and thus, there was no such apprehension. Such assertion of the defendant No. 1 has not been disputed by the plaintiff by giving any suggestion to the contrary in cross-examination of D.W-1. The plaintiff herself has admitted in her evidence that all the other brothers of Jagannath were dead before her marriage which allegedly took place in the year 1945. It is no bodys case that the Jagannath had any joint business with his other brothers or that in order to save the property from his creditors, such a step was taken. It rather appears that all his brothers used to reside in the State of Rajasthan whereas he alone stayed in Purulia and was a priest by profession and that was his only source of his income. Therefore, it is apparent that the plaintiff could not disclose any convincing reason for making a benami transaction by Jagannath in the name of his wife. None of the witnesses for the plaintiff including the plaintiff herself could utter anything about the motive of Jagannath in supplying money for purchasing the property in the name of his wife. The learned Trial Judge, as it appears from the judgment impugned," was of the view that in this case, the motive of benami was not of much importance and in his opinion, the reason assigned by the plaintiff, that in order to avoid the possible claim from his brothers and agnates, Jagannath purchased the property in the name of his wife, was quite probable. The learned Trial Judge totally overlooked that the death of all the brothers of Jagannath at the time of purchase had been proved and that there was no evidence to show that Jagannath had, at any point to time, any joint business either with his other brothers or their sons. Over and above, it is admitted by the plaintiff that the only source of income of Jagannath was his profession as a priest in Purulia and as such, the other brothers or their heirs had no plausible plea to assert any right over the property purchased by Jagannath as the joint family property. Over and above, it is admitted by the plaintiff that the only source of income of Jagannath was his profession as a priest in Purulia and as such, the other brothers or their heirs had no plausible plea to assert any right over the property purchased by Jagannath as the joint family property. (20.) We should bear in mind that in the Indian society, if a husband supplies the consideration money for acquiring property in the name of his wife, such fact does not necessarily implies benami; source of money is, no doubt, an important factor but not the decisive one. [See Chittaluri Sitamma v. Saphar Sitapatirao reported in AIR 1938 Mad 8 which was quoted with approval in Binapani v. Pratima (supra)]. The intention of the supplier of the consideration money is the vital fact to be proved by the party who asserts benami. In other words, even If it is proved that Jagannath paid the consideration money, the plaintiff must further prove that Jagannath really intended to enjoy the full benefit of the title in him alone ; at this stage it will be profitable to refer to the following observations of the Supreme Court in the case of Jaydayal Poddar (Deceased) through L.Rs. and another v. Mst. Bibi Hazra and others reported in AIR 1974 SC 171 : "It is well settled that the burden of proving that a particular sale is benami and the apparent purchaser is not the real owner, always rests on the person asserting it to be so. This burden has to be strictly discharged by adducing legal evidence of a definite character which would either directly prove the fact or benami or establish circumstances unerringly and reasonably raising an inference of that fact. The essence of a benami is the intention of the party or parties concerned; and not unoften such intention is shrouded in a thick veil which cannot be easily pierced through. But such difficulties do not relieve the person asserting the transaction to be benami of any part of the serious onus that rests on him; nor justify the acceptance of mere conjectures or surmises, as a substitute for proof. But such difficulties do not relieve the person asserting the transaction to be benami of any part of the serious onus that rests on him; nor justify the acceptance of mere conjectures or surmises, as a substitute for proof. The reason is that a deed is a solemn document prepared and executed after considerable deliberation, and the person expressly shown as the purchaser in the deed, starts with the initial presumption in his favour that the apparent state of affairs is the real state of affairs." (21.) In this case, the property was acquired in the year 1940, when the family of Jagannath consisted of his wife and only married daughter. In those days, the widows would get a limited interest after the death of their husbands. In such a situation, if Jagannath supplied the money to his wife for acquiring the property in her own name, in the absence of any evidence of motive to the contrary, the natural presumption would be that he wanted to secure his wife by making her absolute owner of the property so that after his death, Moni Devi was not required to rely upon her married daughter. Our aforesaid view finds supports from the decision of the Supreme Court in the case of Binapani v. Pratim (supra) where the Apex Court was dealing with a case where money was supplied by the husband for acquiring property in the name of wife and arrived at the same conclusion. The position of law that mere supply of money by the husband in the absence of any motive does not amount to benami has been accepted by the Supreme Court long back in the case of Kanakarathanammal v. S. Loganatha Mudaliar and another reported in AIR 1965 SC 271 in the following Words : "It is true that the actual management of the property was done by the appellants father; but that would inevitably be so having regard to the fact that in ordinary Hindu families the property belonging exclusively to a female member would also be normally managed by the Manager of the family ; so that the fact that appellants mother did not take actual part in the management of the property would not materially affect the appellants case that the property belonged to her mother. The rent was paid by the tenants and accepted by the appellants father; but that, again, would be consistent with what ordinarily happens in such matters in an undivided Hindu family. If the property belongs to the wife and the husband manages the property on her behalf, it would be idle to contend that the management by the husband of the properties is inconsistent with the title of his wife to the said properties. What we have said about the management of the properties would be equally true about the actual possession of the properties, because even if the wife was the owner of the properties, possession may continue with the husband as a matter of convenience. We are satisfied that the High Court did not correctly appreciate the effect of the several admissions made by the appellants father in respect of the title of his wife to the property in question. Therefore, we hold that the property had been purchased by the appellants mother in her own name though the consideration which was paid by her for the said transaction had been received by her from her husband". (Emphasis supplied by us) (22.) If we consider the "post transaction dealings of the property by the parties", it will appear that in the municipal records and the Government records, the name of Moni Devi appeared. No evidence has been adduced to show that Jagannath, at any point of time during his life time, ever claimed the property to be his own. Even after the death of Jagannath in the year 1953, Gomoti, the daughter of Jagannath, never applied for mutation of her name in municipal or Government record as lawful owner. It appears that Moni Devi in her Will described the property as her own and Gomoti, her daughter, accepted that position by applying for Letters of Administration of the said Will but due to her death the said application abated. The plaintiff, on the other hand, although claiming to be the widow of the predeceased adopted son of Jagannath, never asserted her right in the property during the life time of Moni Devi from the year 1953 till her death in the year 1963. The plaintiff, on the other hand, although claiming to be the widow of the predeceased adopted son of Jagannath, never asserted her right in the property during the life time of Moni Devi from the year 1953 till her death in the year 1963. The plaintiff has admitted in her evidence that she was aware of the fact that Moni Devi left a Will but it appears from record that she never intervened in the said application for administration by Gomoti. She admitted that all along Moni Debi paid taxes and rents and used to collect rents from the tenants of the property and that the Electric-meter stood in the name of Moni Devi. She even could not disclose the amount of municipal taxes or the Government rent payable in respect of the suit property. She further admitted that she never saw the deeds relating to the suit property. It is needless to mention that the title deeds came from the possession of the defendant No. 1. All these "post transaction dealings of the parties" demonstrate beyond doubt that everybody accepted the position that Moni Devi was the real owner of the property. The plaintiff could not produce any document showing that after the death of Jagannath in the year 1953, she ever received any share of profits out of the property or that either Moni Devi or Gomoti ever recognised her as a co-sharer of the property. In the voters list, the plaintiffs name never appeared as a resident of the suit property right from her date of marriage with Sitaram till the date of institution of the suit. No evidence has been adduced on behalf of the plaintiff to show that she after the deathof Jagannath in the year 1953 ever received any amount from the rent collected from the tenants nor could she produce any evidence showing exertion of her half share in the property before the death of even Gomoti. No evidence has been adduced on behalf of the plaintiff to show that she after the deathof Jagannath in the year 1953 ever received any amount from the rent collected from the tenants nor could she produce any evidence showing exertion of her half share in the property before the death of even Gomoti. (23.) We, therefore, find that the learned Trial Judge in holding that the suit property was purchased in the benam of Moni Devi did not follow the well-accepted proposition of law relating to benami and was of the erroneous view that merely because the consideration money might have been supplied by Jagannath, the property should be held to be owned by him in the benam of his wife by not considering the motive of Jagannath as well as the "post transaction dealing of the property" by Jagannath and his admitted heirs, viz. Moni Devi and Gomoti. We, consequently, hold that the property was owned by Moni Devi although, most probably, consideration money was supplied by her husband and her husband never exercised any right adverse to that of Moni Devi in the property. (24.) The next question is whether the plaintiff has been able to establish that her husband was lawfully adopted by Jagannath in accordance with the then law of adoption prevailing among the Hindu Brahmins. (25.) Before entering into the question whether there was at all any ceremony of adoption of Sitaram by Jagannath, we propose to answer the two pure questions of law raised by Mr. Roy Chowdhury regarding the legality of the alleged adoption, even if, it is assumed for the sake of argument that any such ceremony had really taken place. (26.) The first point in this regard raised by Mr. Roy Chowdhury is that the natural mother of Sitaram being the sister-in-law of Jagannath, the alleged adoptive father, the adoption is opposed to law because one of the conditions of valid adoption under the old Hindu law was that there should not be any legal bar in the marriage between the adoptive father and the natural mother of the adopted son if the parties were Brahmin. We are quite conscious of the position of the old Hindu law that there was some authority for the proposition that the adopted son must not be so related to the adoptive father as to render the marriage between the adoptive father and the natural mother in her maiden state either illegal or obnoxious. In this case, no evidence has been laid to show that the natural mother of Sitaram was so related in her maiden state; on the contrary, the fact that she was married" to the brother of Jagannath indicated that there was no such bar. Thus, the first point is devoid of any substance. Moreover, the Supreme Court in the case of Abhiraj Kuer v. Debendra Singh reported in AIR 1962 SC 351 has specifically held that the aforesaid rule of law is recommendatory and not mandatory and an adoption in breach of the aforesaid rule is not invalid. (27.) The other point of law raised by Mr. Roy Chowdhury is that the parties being Brahmin, in the absence of any evidence showing that Sitaram did not go through the Upanayan ceremony before the adoption while he was in his natural fathers family, the adoption was illegal. In other words, Mr. Roy Chowdhury contends that a Brahmin boy, before the coming into operation of the Hindu Adoption and Maintenance Act, could be adopted only before he had undergone Upanayan ceremony and the age of the boy at the time of adoption was immaterial. According to Mr. Roy Chowdhury, in this case, it has been sought to be established that Sitaram was aged 14 years at the time of adoption but no evidence has been adduced to show that even till 14 years he did not undergo Upanayan ceremony which was unusual in the facts of this case when the evidence has been laid that the parties used to marry before attaining the age of 16 or 17. (28.) As pointed out by a Division Bench of this Court in the case of Sm. Sarabala Debi v. Sudhir Kumar Mukhopadyay reported in AIR 1944 Cal 285, the aforesaid principle of Hindu law had limited application to the Eastern India and Benaras but had no application to the Western India (See the last paragraph of the concurring judgment by Dr. B.K. Mukherjee, J. at page 272). Sarabala Debi v. Sudhir Kumar Mukhopadyay reported in AIR 1944 Cal 285, the aforesaid principle of Hindu law had limited application to the Eastern India and Benaras but had no application to the Western India (See the last paragraph of the concurring judgment by Dr. B.K. Mukherjee, J. at page 272). Moreover, in the other part of India, there was a view that in a case where the adoption was taken in the same family or Sakha or gotra, the Upanayan in the family of birth could not create any impediment in adoption even if taken after Upanayan. In the case before us, the adoption having been allegedly taken in the Western India and the parties being resident of Rajasthan, the said point raised by Mr. Roy Chowdhury is insignificant in the facts of the present case. Moreover, there is no definite evidence that Sitaram had undergone the ceremony of Upanayan before the alleged adoption and such plea was not even taken in the written statements. We are, thus, not impressed by the aforesaid two questions of law raised by Mr. Roy Chowdhury. (29.) We now propose to consider the question whether there was really any adoption of Sitaram by Jagananth by holding a ceremony as claimed by the plaintiff. (30.) In answering this issue in favour of the plaintiff, the learned Trial Judge has mainly relied upon the Exbt.-2 and the oral evidence of P.W.-2, the sole eyewitness of the alleged ceremony of the adoption. The learned Trial Judge has also taken into consideration the oral evidence adduced by the plaintiff herself and P.W.-12, a neighbour of Jagannath who have heard about the alleged adoption of Sitaram. The learned Trial Judge further relied upon Exbt-17, 17(a) and 17(c), the recorded depositions of three different persons, since deceased, in an earlier suit for eviction filed by the defendant No. 1 for eviction of a tenant which was decreed in favour of the defendant No. 1. (31.) Exbt.-2 is a letter dated July 20, 1945. It was marked as exhibit at the instance of the plaintiff who stated that she filed all the letters which her father received from her mother-in-law and Exbt.-2 was one of such letter. (31.) Exbt.-2 is a letter dated July 20, 1945. It was marked as exhibit at the instance of the plaintiff who stated that she filed all the letters which her father received from her mother-in-law and Exbt.-2 was one of such letter. In cross-examination, however, in answer to the question put to her about the said letter she made the following statements: "On the date of receipt of the letter ext-2 I came to know about the same. I cannot remember the exact date of receipt. I cannot say as to who was the scribe of the letter. It was in the envelope. I cannot say whereabouts of that envelope. I got the letter at Motihari from my father. Chiranjilal was the Dharambhai of my father-in-law. The letter in question was in Hindi Script, Not a fact that my father did not receive any such letter vide ext. 2. Not a fact that I have manufactured his letter for the purpose of this suit. Chiranjilal used to write to my father regularly. I have no other letter of Chiranjilal to file before this Court. While I used to reside in Purulia my relation like father, brother etc. used to write me from Motihari. I have no such letters at present with me to file before this Court. My father-in-law sent telegram informing the illness of Sitaram. I have no telegram with me." (32.) Exbt.-2 is a letter written on the letterhead of Biswan Dayal Ramjiwan Cloth and Yarn Merchants, Bankers and Commission Agents by one Seeta Ram Sharma C/O Bishan Dayal Ramjiwan P.O. Purulia (Manbhum). In the body of the letter, the sender was described as "Jagannath Sitaram". By relying upon such letter, Mr. Banerjee vehemently contended that such description of the Sitaram indicated that Sitaram was adopted by Jagannath. (33.) In our opinion, having regard to the evidence given by the plaintiff, it has not been established that Ext- 2 was written by the husband of the plaintiff. The statement in cross-examination quoted above clearly indicated that the plaintiff did not know the handwriting of her husband and could not prove the handwriting of the scribe of Exbt.-2. The envelope was not produced. No other letter written by Sitaram to the plaintiff or to her father was produced to show that Sitaram was the adopted son of Jagannath. The statement in cross-examination quoted above clearly indicated that the plaintiff did not know the handwriting of her husband and could not prove the handwriting of the scribe of Exbt.-2. The envelope was not produced. No other letter written by Sitaram to the plaintiff or to her father was produced to show that Sitaram was the adopted son of Jagannath. Moreover, if such letter, (Exbt.-2) was written to the father of the plaintiff, no reason has been assigned why such letter was handed over to the plaintiff by her mother-in-law as claimed by her while marking the same as Ext. Moreover, when according to the plaintiff, Sitaram, her husband, used to stay in the house of Jagannath in Purulia as his son, there was no just reason for Sitaram to write a letter in the letterhead of the Merchant-Firm doing business in Purulia disclosing the address of the said Firm as his own address where he was allegedly working by not describing the address of the suit property as his own residential address. (34.) What is most unexpected is that not a single scrap of paper apart from Ext-2 has been produced to show that Jagannath or Moni Devi ever treated Sitaram as their adopted son. If Sitaram was really brought to Purulia at the age of 14, and according to the plaint case, he was educated in Purulia for some time, he must have been admitted in any of the schools at Purulia and such School Register could indicate the fathers name of Sitaram. The plaintiff produced two different school registers in order to prove the date of birth of the defendant No. 1 but did not endeavour to produce the school register of her husband which would disclose the veracity of the plea of adoption. It is very difficult to believe that the plaintiff had no knowledge about the standard of education her husband had undergone, although her definite case is that "he got his education at Purulia for some time" (See paragraph 6 of the plaint) and used to work in a merchants firm. Similarly, the marriage invitation card either on the part of the plaintiff or of her husband or the letters of negotiation of marriage could also be produced to prove such fact. Similarly, the marriage invitation card either on the part of the plaintiff or of her husband or the letters of negotiation of marriage could also be produced to prove such fact. (35.) Similarly, the evidence of a deceased witness given in an earlier suit not inter parties or their representatives is not relevant either under Section 32(5) or under Section 33 of the Indian Evidence Act in the facts of present case. Section 32(5) is not attracted because at the time of giving deposition in the earlier suit, the dispute as regards adoption of Sitaram had already emerged. In this connection, we may refer to the following observations of the Supreme Court in the case of Kalidindi Venkata Subbaraju and others v. Chintalapati Subbaraju and others reported in AIR 1968 SC 947 : "Both sub-ss. (5) and (6) of Sec. 32, as aforesaid, declare that in order to be admissible the statement relied on must be made ante litem motam by persons who are dead, i.e., before the commencement of any controversy actual or legal upon the same point. The words "before the question in issue was raised" do not necessarily mean before it was raised in the particular litigation in which such a statement is sought to be adduced in evidence. The principle on which this restriction is based is succinctly stated in Halsburys Laws of England, 3rd Ed. Vol. 15, p. 308 in these words: "To obviate bias the declarations are required to have been made ante litem motam which means not merely before the commencement of legal proceedings but before even the existence of any actual controversy concerning the subject matter of the declarations." (36.) At the same time, Section 33 is not attracted because in order to attract the said provision, all the three conditions mentioned in the proviso to the Section 33 should be fulfilled. (See Sashi Jena and others v. Khadal Swain and another reported in AIR 2004 SC 1492 at paragraph 8). The earlier suit, where the deceased witnesses deposed, was not between the same parties or claiming through them and the question in issue was also not substantially the same. If those two conditions were satisfied, the decision of the earlier suit would have been res judicata in the present proceedings and the plaintiffs suit would fail on that ground. The earlier suit, where the deceased witnesses deposed, was not between the same parties or claiming through them and the question in issue was also not substantially the same. If those two conditions were satisfied, the decision of the earlier suit would have been res judicata in the present proceedings and the plaintiffs suit would fail on that ground. (37.) Therefore, the learned trial judge in arriving at the finding that Sitaram was the adopted son of Jagannath, erroneously relied upon Exbt.-17, 17(a) and 17(c) which were inadmissible in evidence. Similarly Exbt.-2 was not at all reliable and the same was not proved to be in the handwriting of Sitaram. (38.) Now the question is whether the evidence given by P.W.-2, the sole eyewitness of the alleged adoption, should have been believed by the learned Trial Judge. (39.) Rukmini Joshi, the P.W.- 2, is the widow of the elder brother of Sitaram. She claimed to have been present at the time of adoption of Sitaram by Jagannath. According to her evidence given in the month of September, 1984, at the time of adoption, Sitaram was aged 14 years and out of the persons present on that occasion, only two persons were then alive. She was one of them and the other one was the wife of Syamlal, another brother of Sitaram. According to her statement, one Durga Dutt Pandit performed the "Horn" on that occasion and her mother-in-law gave away Sitaram to Jagannath and Moni Debi. in cross-examination, she asserted that adoption had taken place 40 years ago. She, however, could not say how old was she at the time of said adoption ceremony nor could she disclose how many years earlier was she married. All though she had four sons, she could not say how many years ago her eldest son was married. She even could not disclose how old she was at the time of marriage of her eldest son. She even could not say the then age of her eldest son at the time of deposition. She could not even remember the names of the parents of the plaintiff. (40.) In our opinion, it is unsafe to rely upon the sole evidence of P.W.-2 on a crucial question of adoption. The other eyewitness, who according to her was still alive, i.e. the wife of Syamlal, was not examined and no reason has been assigned for her non-examination. (40.) In our opinion, it is unsafe to rely upon the sole evidence of P.W.-2 on a crucial question of adoption. The other eyewitness, who according to her was still alive, i.e. the wife of Syamlal, was not examined and no reason has been assigned for her non-examination. At this stage, we should bear in mind that the burden of proving adoption is a heavy one and if there is no documentary evidence in support of adoption, the Court should be very cautious in relying upon oral evidence. The following observations of the Supreme Court in the case of Rahasa Pandiani (dead) by L.Rs. and others v. Gokulananda Panda and others reported in AIR 1987 SC 962 will make the position clear: "Before we advert to the relevant circumstances we consider it appropriate to advert to note of caution sounded by this Court as early as in 1958 in Kishori Lal v. Mst. Chaltibai, 1959 Suppl (1) SCR 698: ( AIR 1959 SC 504 ). We can do no better than to quote the relevant passage from the judgment of Kapur, J. (at p. 508 of AIR):-"As an adoption results in changing the course of succession, depriving wives and daughters of their rights and transferring properties to comparative strangers or more remote relations it is necessary that the evidence to support it should be such that it is free from all suspicion of fraud and so consistent and probable as to leave no occasion for doubting its truth. Failure to produce accounts, in circumstances such as have been proved in the present case, would be a very suspicious circumstance. The importance of accounts was emphasised by the Privy Council in Sootrugun v. Sabitra. (1834 (2) Knapp 287); in Diwakar Rao v. Chandanlal Rao, (AIR 1916 PC 81); in Kishorilal v. Chunilal, [1908 (36) Ind App, 9] : in Musammat Lal Kunwarv. ChiranjiLal, [1909 (37) Ind App 1] and in Padmalal v. Fakira Debya, (AIR 1931 PC 84)." When the plaintiff relies on oral evidence in support of the claim that he was adopted by the adoptive father in accordance with the Hindu rites, and it is not supported by any registered document to establish that such an adoption had really and as a matter of fact taken place, the Court has to act with a great deal of caution and circumspection. Be it realized that setting up a spurious adoption is not less frequent than concocting a spurious will, and equally, if not more difficult to unmask. And the Court has to be extremely alert and vigilant to guard against being ensnared by schemers who indulge in unscrupulous practices out of their lust for property. If there are any suspicious circumstances, just as the propounder of the will is obliged to dispel the cloud of suspicion, the burden is on one who claims to have been adopted to dispel the same beyond reasonable doubt. In the case of an adoption which is not supported by a registered document or any other evidence of a clinching nature if there exist suspicious circumstances, the same must be explained to the satisfaction of the conscience of the Court by the party contending that there was such an adoption. Such is the position as an adoption would divert the normal and natural course of succession. Experience of life shows that just as there have been spurious claims about execution of a will, there have been spurious claims about adoption having taken place, And the Court has therefore to be aware of the risk involved in upholding the claim of adoption if there are circumstances which arouse the suspicion of the Court and the conscience of the Court is not satisfied that the evidence preferred to support such an adoption is beyond reproach." (41.) If we apply the aforesaid principles to the facts of the present" case, it is very difficult to rely upon the sole oral testimony of P.W-2 in the absence of any subsequent documentary evidence supporting the plea of adoption. We have already pointed out that neither any letter written by Jagannath to the father of the plaintiff, nor the invitation card for the marriage of Sitaram with the plaintiff nor the letters of negotiation of such marriage, nor the School documents nor the Ration Card of Sitaram, had been produced by the plaintiff from which we could get at least the corroboration of adoption by Jagannath. Even the death certificate of Sitaram could be produced as he died in the municipal limit of Purulia. If Sitaram was really adopted, some sort of documentary evidence corroborating such fact could be produced when the plaintiff has claimed in her evidence that Jagannath used to write letters to her father. Even the death certificate of Sitaram could be produced as he died in the municipal limit of Purulia. If Sitaram was really adopted, some sort of documentary evidence corroborating such fact could be produced when the plaintiff has claimed in her evidence that Jagannath used to write letters to her father. Thus, the learned Trial Judge erred in law in relying upon the evidence of the plaintiff, a most interested person or of P.W-12, a resident of Purulia to whom Jagannath allegedly told that he adopted Sitaram. (42.) We, therefore, on consideration of all the evidence on record, hold that the plaintiff has failed to prove adoption of Sitaram by Jagannath. (43.) Once we hold that the suit property is owned by Moni Devi and not by Jagannath and that Sitaram was not the adopted son of Jagannath, the other relevant issues whether Rajendra was the adopted son of Gomoti or whether Rajendra got the suit property from Gomoti by a registered deed of gift becomes insignificant in this suit, if Sitaram was not the adopted son of Jagannath, on the death of Moni Debi, the sgit property devolved on her only daughter Gomoti and not upon the plaintiff. Gomoti having inherited the suit property from her mother, in the absence of her child or any deed of gift, if we assume such fact for the sake of argument, the property would devolve upon those heirs of Jagannath, her father, if Jagannath died on the date of death of Gomoti immediately after her (See Bajaya v. Gopikabhai reported in AIR 1978 SC 793 ). The plaintiff being the widow of Sitaram, a nephew of Jagannath, she could not be his heir when at least one Chautamal Sharma, one of the brothers sons of Sitaram was alive on the death of Gomoti as would appear from the evidence of the plaintiff. Therefore, the brother or sisters of Jagannath, if alive on the death of Gomoti and if they were dead, the brothers sons and daughters and the sisters sons and daughters of Jagannath, would be the heirs of Gomoti as the heirs of her father and be entitled to challenge adoption of Rajendra and the alleged gift by Gomoti in his favour. (44.) We, therefore, find no reason to go into those questions raised in the cross-objection in connection with this appeal. (44.) We, therefore, find no reason to go into those questions raised in the cross-objection in connection with this appeal. The plaintiff having failed to prove her right either as the heir of Jagannath or of Gomoti, is not entitled to dispute the adoption of Rajendra by Gomoti or the deed of gift executed by Gomoti in favour of Rajendra. We, thus, refrain from entering into those questions as the plaintiff has no right to dispute those facts and even if we hold against Rajendra, the plaintiff cannot get any relief (see : Mohant Narayan Girl Guru Mohant Someswar Girl v. State of Maharashtra reported in AIR 1977 SC 628 ) and our finding will not even be res judicata in a future suit if filed by those brother and sisters or the nephews and nieces of Jagannath against Rajendra. (45.) We, therefore, allow this appeal and dismiss the cross-objection with the finding that the Moni Devi was not the benamdar of Jagannath in respect of the suit property and that Sitaram was not adopted by Jagannath as his son and consequently, the plaintiff had failed to prove any right, title and interest in the suit property. The suit is, thus, dismissed in its entirety. In the facts and circumstances there will be however no order as to costs.