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2016 DIGILAW 80 (GAU)

Praneswar Das v. Malati Das

2016-02-04

N.CHAUDHURY

body2016
JUDGMENT : This second appeal is directed against the concurrent findings of the learned courts below whereby suit of the appellant/plaintiff was dismissed by the learned trial court and the same was upheld by the learned first appellate court. 2. Present appellant, as plaintiff, instituted Title Suit No. 34/2000 in the court of learned Civil Judge (Jr. Divn.) No. 1, Nalbari stating that his paternal uncle late Ratneswar Das owned and possessed 2 Kathas of land under Dag No. 604 of KP Patta No. 21 of village Kaljar under Paschim Baska Mouza in the district of Nalbari. Ratneswar had purchased this land from one Atal Ali by registered sale deed dated 22.10.1971 at a consideration of Rs. 8,000/-. Ratneswar did not have any issue, however, he had two wives. His first wife Prabha Das died after death of Ratneswar and during her life time she gifted her share of 13½ lechas of land in the aforesaid dag and patta in favour of the plaintiff by Chitha mutation. The second wife Malati Das was surviving but she filed an objection before the revenue authority challenging the mutation obtained by the plaintiff on the basis of the gift. The revenue authority allowed the application and set aside the initial mutation order. Under such circumstances, the plaintiff instituted the suit for declaration of his right, title and interest over the land measuring 13½ lechas. According to the plaintiff, he was adopted by Ratneswar Das during his life time and all along he lived with him. Ratneswar reared him up and gave him education and ultimately he constructed his house on the land of Ratneswar. 3. Appearing in the case, the principal defendant Malati Das denied the claim of adoption made by the plaintiff. According to her, plaintiff Praneswar Das was son of Late Jibon Das, who is younger brother of Ratneswar Das. Although it is true that Ratenswar did not have any issue but he had two wives, and that he did never take Praneswar into adoption and that plaintiff did not acquire right, title and interest to the suit property upon death of Ratneswar. She also denied the claim as to gift made by Prabha Das during her life time. She prayed that the suit be dismissed with cost. 4. On the basis of pleadings of parties, the learned trial court framed following 7 issues:- 1. She also denied the claim as to gift made by Prabha Das during her life time. She prayed that the suit be dismissed with cost. 4. On the basis of pleadings of parties, the learned trial court framed following 7 issues:- 1. Whether there is cause of action for the suit? 2. Whether suit is maintainable in its present form? 3. Whether plaintiff was the adopted son of late Ratneswar Das and entitled to instant properties left by late Ratneswar Das? 4. Whether plaintiff acquired right, title and interest over the suit land? 5. Whether Defendants got right, title and interest over the suit land? 6. Whether plaintiff is entitled to reliefs as prayed for? 7. To what after relief/reliefs parties are entitled? 5. During trial, plaintiff examined 4 witnesses and exhibited as many as 6 documents including the document of title by which Ratneswar had purchased the land. Defendant, on the other hand, examined 2 witnesses including herself and exhibited 4 documents. After hearing the learned counsel for the parties and on perusal of the materials available on record, the learned trial court dismissed the suit by judgment and decree dated 24.08.2004 holding that plaintiff was never adopted by Ratneswar Das as there was no proof in support thereof. Moreover, there was no valid gift deed executed Prabha Das during her life time. Plaintiff claimed to have got 13½ lechas of land from Prabha Das by way of Chitha mutation and there was no valid gift as required by law. Holding so, the other two issues, namely, issues No. 4 and 5 were also decided against the plaintiff. Consequently, the entire suit of the plaintiff was dismissed. 6. Aggrieved at the aforesaid trial court judgment and decree, the plaintiff instituted Title Appeal No. 22/2004 in the Court of learned Civil Judge (Sr. Divn.) at Nalbari. The learned first appellate court re-appreciated the evidence, perused the materials available on record and after considering the judgment passed by the learned trial court independently held that there was no evidence to show that the plaintiff was adopted by Ratneswar Das within the meaning of Section 11(vi) of the Hindu Adoptions and Maintenance Act, 1956. Divn.) at Nalbari. The learned first appellate court re-appreciated the evidence, perused the materials available on record and after considering the judgment passed by the learned trial court independently held that there was no evidence to show that the plaintiff was adopted by Ratneswar Das within the meaning of Section 11(vi) of the Hindu Adoptions and Maintenance Act, 1956. There was neither any deed of adoption nor was there any other material to hold that the plaintiff was given in adoption by his biological father Ratneswar Das and that there was handing over and taking over of possession. The learned first appellate court also noticed the findings of the learned trial court that in all testimonials like educational certificates as well as other Governmental documents including voter list ect., the name of the plaintiff was shown as son of Jiban Das who is biological father of the plaintiff and not of Ratneswar Das. Considering all these materials, the learned first appellate court upheld the findings of the learned trial court that there was no valid adoption. The learned first appellate court upheld the finding of the learned trial court in regard to invalidity of gift as because there was no registered instrument witnessing the transaction. This judgment and decree dated 29.03.2005 dismissing the appeal of the plaintiff/appellant has been challenged in this second appeal. 7. This court while admitting the appeal on 07.04.2006, framed the following substantial questions of law:- 1. Whether the finding of the learned first appellate Court to the effect that execution of a deed is a must for having a valid adoption is sustainable in law? 2. Whether the finding of the learned court of appeal that the appellant is not adopted child of late Ratneswar Das is a perverse one? 8. I have heard Mr. S.K. Barkataki, learned counsel for the appellant and Mr. M. Choudhury, learned counsel for principal respondent No. 1. The pro-forma respondents have not entered appearance. They did not appear before the learned trial court and the first appellate court. 9. Mr. S.K. Barkataki, learned counsel for the appellant, strenuously urges that Section 11 of the Hindu Adoptions and Maintenance Act, 1956 does not provide that that there has to be an adoption deed. The pro-forma respondents have not entered appearance. They did not appear before the learned trial court and the first appellate court. 9. Mr. S.K. Barkataki, learned counsel for the appellant, strenuously urges that Section 11 of the Hindu Adoptions and Maintenance Act, 1956 does not provide that that there has to be an adoption deed. There is no prescribed formality for adopting a child under the Hindu Law holding the field and so learned courts below committed error in holding that formalities of adoption were not performed in the present case. According to the learned counsel for the appellant, Hindu Law does not require any particular ceremony or procedure to be followed for performing adoption. In the present case, plaintiff is none other than the son of late Jiban Das who is younger brother of Ratneswar Das and so, apparently they belonged to the same gotra and family. It is on record from the evidence of the witnesses that the plaintiff all along had been living with Ratneswar and it is this Ratneswar who had arranged for education and well being of the plaintiff. For all practical purposes, he remained with Ratneswar and has been staying on the land left behind by Ratneswar. As per the existing practice, gifts are made by Chitha mutation and this is how Prabha Das gifted her share of 13½ lechas of land in favour of the plaintiff. The revenue authority having taken cognizance of the same, allowed mutation in favour of the plaintiff along with Prabha Das and Malati Das to the suit land and so adoption as a matter of fact has been established. True, there is no gift deed as required under section 122 and 123 of the Transfer of Property Act but the plaintiff has been possessing and enjoying the same all along. With these submissions, Mr. Barkataki prays that the judgments and decrees of the learned courts below be set aside by deciding the substantial questions of law in favour of the appellant. 10. Per contra, Mr. M. Choudhury, learned counsel for the respondent No. 1, would argue that section 11(vi) of the Hindu Adoptions and Maintenance Act, 1956 (hereinafter referred to as ‘the Act’) lays down a clear guideline as to how adoption has to be made among the Hindus. 10. Per contra, Mr. M. Choudhury, learned counsel for the respondent No. 1, would argue that section 11(vi) of the Hindu Adoptions and Maintenance Act, 1956 (hereinafter referred to as ‘the Act’) lays down a clear guideline as to how adoption has to be made among the Hindus. Drawing attention of the Court to Section 10(iv) of the Act, he submits that a child can be adopted before he has completed age of 15 years unless there is a custom or usage to the contrary. The plaintiff is silent in this regard. He further submits that Section 11(vi) requires that a child to be adopted must be actually given and taken in adoption by the parents or guardian concerned and no such ceremony has been proved to show that essentials of section 11(vi) of the Hindu Adoptions and Maintenance Act, 1956 have been satisfied. According to Mr. Choudhury, there was no adoption whatsoever and that is why plaintiff identified himself in all educational certificates and Governmental documents as a son of Jiban Das. Ext. 5 is one such document submitted by the plaintiff before the Election Department which shows that he has described himself as son of Jiban Das. Even in Ext. 2 Jamabandi adduced by none other than the plaintiff, he has been described as son of Jiban Das. Thus, preponderant evidence shows that plaintiff never identified himself to be a son of Ratneswar Das and so it is clear that he was never taken in adoption by Ratneswar as a son. According to him, snapping relationship with biological parents is an essential condition subsequent for valid adoption. Here in this case, plaintiff not only described himself as a son of Jiban Das, the biological father, he could not prove anything to show that he was taken in adoption before attainment of 15 years of age. On totality of circumstances, plaintiff has miserably failed to prove adoption. But he agrees that execution of a deed is not a must for adoption within the meaning of Section 11(vi) of the Act. With these submissions, he prays that the two substantial questions of law are liable to be decided against the appellant and in favour of the respondent No. 1. Having heard the learned counsel for the parties and on perusal of the materials available on record, it appears that Ratneswar Das purchased the suit land by Ext. With these submissions, he prays that the two substantial questions of law are liable to be decided against the appellant and in favour of the respondent No. 1. Having heard the learned counsel for the parties and on perusal of the materials available on record, it appears that Ratneswar Das purchased the suit land by Ext. 1 on 22.10.1971 by a registered sale deed. So the suit land is the self acquired property of Ratneswar Das. He died in 1982 leaving behind two wives, however, he had no issue. At the time of death, Ratenswar is said to have been 70 years of age. Under such circumstances, even if it is assumed that Ratneswar had married two wives prior to 17.06.1956 in that event, after his death his properties devolved equally on his two wives Prabha and Malati. Admittedly, Prabha died after making alleged gift in favour of the plaintiff and so under Section 15(1)(b) of the Hindu Succession Act, 1956, her share in the property left behind by Ratneswar devolved on the legal heirs of Ratneswar. Be that as it may, the two substantial questions of law framed in the present appeal require adjudication as to whether plaintiff was legally and validly adopted by Ratneswar. 11. The Hindu Adoptions and Maintenance Act, 1956, is the only piece of coded law governing adoption. It provides the eligibility of person giving adoption, the eligibility of person taking adoption and also persons who may be adopted. The essentials of the persons who may be adopted have been laid down in Section 10 of the Act. Section 10 of the Act is quoted below:- “10. Persons who may be adopted. – No person shall be capable of being taken in adoption unless the following conditions are fulfilled, namely:- (i) he or she is a Hindu; (ii) he or she has not already been adopted; (iii) he or she has not been married, unless there is a custom or usage applicable to the parties which permits persons who are married being taken in adoption; (iv) he or she has not completed the age of fifteen years, unless there is a custom or usage applicable to the parties which permits persons who have completed the age of fifteen years being taken in adoption.” 12. It would appear from the above that under Section 10(iv) a Hindu can be taken in adoption if he or she has not completed age of 15 years unless there is custom or usage to the contrary. In the plaint, nowhere any statement has been made as to when was the adoption made and/or what was the age of the plaintiff at that time. Plaintiff having made a claim that he was taken in adoption by Ratneswar in that event, the material facts necessary for adjudicating such claim would include the following:- (1) Whether plaintiff had completed age of 15 years as on the date of adoption, if not whether there is any custom to the contrary in Assamese Society? (2) Whether there was any ceremony for handing over and taking over of the child between biological father and adopted father? (3) Whether such a ceremony received due publicity? The aforesaid ingredients may be necessary because Section 11(vi) requires that a child to be adopted must be actually given and taken in adoption by the parents. This is because adoption results in a distinct and different parentage by fiction. Adoption has all along been considered to be a means for becoming son under Hindu law. This is because in Hindu law, son plays a vital role in the religious life of the father. The relationship among father, son and wife of an individual is accordingly designed. Inheritance of properties under Hindu system is no exception. It has a spiritual implication. In Hindu law, inheritance is linked with spiritual responsibility. A son has pious liability to discharge debts of his father and so he has right to inherit his assets. Conversely, inheritance presupposes existence of spiritual liability. A son absolves a father from his liability of debt and consequently fosters his spiritual upliftment by emancipating from hell called “Pu” and this is the reason according to Manusmriti for coinage of the word “Putra”. For reference one can have a look at verse No. 135 of Chapter IX of Manusmriti which is quoted below:- iqaukEuks ujdknLekR=k;rs firja lqr%A rLekRiq= bfr izksd% Lo;eso Lo;aHkqokAA 13. The meaning of the above shloka is that one who salvages someone from the hell called ‘pu’ is called as ‘putra’. This is because it is the ‘putra’ alone who gives oblation after death of a Hindu for salvation of his soul. The meaning of the above shloka is that one who salvages someone from the hell called ‘pu’ is called as ‘putra’. This is because it is the ‘putra’ alone who gives oblation after death of a Hindu for salvation of his soul. Under such circumstances, a person can pay oblation for one father only. This is why when adoption takes place, the adopted son can no longer pay oblation for his biological father. The result is that all spiritual relationships with his biological parents get snapped the moment a child is given in adoption to somebody else. The adoptive father becomes the father not only for religious purposes but also for other incidents of life including inheritance. In Hindu law, inheritance follows the religious responsibilities called as ‘DAYA’ and that is why snapping of all relationships with the biological parents is a necessary condition subsequent for completing valid adoption under Hindu law. If the condition precedent is non-completion of the age of 15 years and of being a Hindu, the condition subsequent is severance of religious ties with the biological parents. 14. The sanctity and importance of Hindu adoptions came up for consideration in a number of judicial precedents. In the case of Balagangadhar Tilak v. Sreenivas Pandit reported in AIR 1915 PC 7 , the Hon’ble Supreme Court decided as to whether datta homam is a must for performance of adoption. Their Lordships in the Privy Council held that datta homam was not a legal requisite or essential for performance among the twice born classes in Bombay Presidency. Their Lordships had come clearly to the conclusion that in India, the celebration of ceremony of datta homam is not an essential to render legal validity to adoption. But these exceptions are limited to the case of adoption of brother’s son or of a daughter’s son. Their Lordships held that ceremony is not necessary if the same is performed within the same gotra. However, Their Lordships also held that Sudras do not have any gotra. 15. But these exceptions are limited to the case of adoption of brother’s son or of a daughter’s son. Their Lordships held that ceremony is not necessary if the same is performed within the same gotra. However, Their Lordships also held that Sudras do not have any gotra. 15. This judgment came up for consideration subsequently in the case of Lakshman Singh Kothari v. Smt. Rup Kanwar reported in AIR 1961 SC 1378 wherein it is held as follows:- “Under the Hindu Law, whether among the regenerate caste or among Sudras, there cannot be a valid adoption unless the adoptive boy is transferred from one family to another and that can be done only by the ceremony of giving and taking. The object of the corporeal giving and receiving in adoption is obviously to secure due publicity. To achieve this object it is essential to have a formal ceremony. No particular form is prescribed for the ceremony, but law requires that the natural parent shall hand over the adoptive boy and the adoptive parent shall receive him. The nature of the ceremony may vary depending upon the circumstances of each case. But a ceremony there shall be, and giving and taking shall be part of it.” 16. The Hon’ble Supreme Court subsequently relied on this judgment in the case of Madhusudan Das v. Smt. Narayanibai (Deceased) by Lrs. and Ors. reported in AIR 1983 SC 114 and discussed the essential pre-requisites of a valid Hindu adoption. In that case, a document was prepared by the lawyer containing usual recitals and thus adoption was made. In that case, one Jagannath Das and his wife Premawati had no children. After death of Premawati, appellant Madhusudan Das instituted a suit against Jagannath Das claiming that he had been adopted by Jagannath Das and Premawati on 24.09.1951 and so subsequent trust created by Jagannath Das and others was not valid. The suit was decreed by the learned trial court declaring that appellant was an adopted son and he had his share in the property. But appeal by the trustee was allowed against which an SLP was preferred before the Hon’ble Supreme Court and this is how the Hon’ble Supreme Court considered the law in regard to formalities of adoption. 17. The suit was decreed by the learned trial court declaring that appellant was an adopted son and he had his share in the property. But appeal by the trustee was allowed against which an SLP was preferred before the Hon’ble Supreme Court and this is how the Hon’ble Supreme Court considered the law in regard to formalities of adoption. 17. After passing of the Hindu Adoptions and Maintenance Act in 1956, the validity of a Hindu adoption would depend upon the material facts as to whether the pre-requisites of a Hindu adoption as prescribed under the Act have been satisfied. Under section 6 of the Act, requisites of valid adoption are provided which requires that no adoption shall be valid unless the following criteria are satisfied:- (i) the person adopting has the capacity, and also the right, to take in adoption; (ii) the person giving in adoption has the capacity to do so; (iii) the person adopted is capable of being taken in adoption; and (iv) the adoption is made in compliance with the other conditions mentioned in this Chapter Other conditions are laid down in clause 7, 8, 9, 10 and 11 of the Act. Section 7 says that no male Hindu can take in adoption unless he obtains consent of his wife if she is surviving. In the explanation it is provided that if a person has more than one wife living at the time of adoption, the consent of all the wives is necessary unless the consent of any one of them is unnecessary for any of the reasons specified in the preceding proviso. 18. Here in this case, principal defendant is none other than a surviving wife of Ratneswar and she clearly says that there was no adoption at all. Section 9 deals with persons capable of giving in adoption and section 10 as quoted above shows the person who may be adopted. Even in this case, the plaintiff’s silent as to what was the age of the plaintiff at the time of alleged adoption. Ultimately, section 11(vi) requires that there has to be actual handing over and taking over of the adopted child. Section 11 is quoted below:- “11. Other conditions for a valid adoption. Even in this case, the plaintiff’s silent as to what was the age of the plaintiff at the time of alleged adoption. Ultimately, section 11(vi) requires that there has to be actual handing over and taking over of the adopted child. Section 11 is quoted below:- “11. Other conditions for a valid adoption. – In every adoption, the following conditions must be complied with:- (i) if the adoption is of a son, the adoptive father or mother by whom the adoption is made must not have a Hindu son, son’s son or son’s son’s son (whether by legitimate blood relationship or by adoption) living at the time of adoption; (ii) if the adoption is of a daughter, the adoptive father or mother by whom the adoption is made must not have a Hindu daughter or son’s daughter (whether by legitimate blood relationship or by adoption) living at the time of adoption; (iii) if the adoption is by a male and the person to be adopted is a female, the adoptive father is at least twenty-one years older than the person to be adopted; (iv) if the adoption is by a female and the person to be adopted is a male, the adoptive mother is at least twenty-one years older than the person to be adopted; (v) the same child may not be adopted simultaneously by two or more persons; (vi) the child to be adopted must be actually given and taken in adoption by the parents or guardian concerned or under their authority with intent to transfer the child from the family of its birth or in the case of an abandoned child or a child whose parentage is not known, from the place or family where it has been brought up to the family of its adoption: Provided that the performance of datta homam shall not be essential to the validity of an adoption.” 19. Having noted the provisions of the Act as referred to above, it appears that plaintiff failed to disclose sufficient material facts to make out valid adoption. He did not disclose as to whether he had completed 15 years of age at the time of alleged adoption. He did not disclose as to whether there was any ceremony as pointed out in the case of Lakshman Singh Kothari (supra). He did not disclose as to whether he had completed 15 years of age at the time of alleged adoption. He did not disclose as to whether there was any ceremony as pointed out in the case of Lakshman Singh Kothari (supra). There is also no material on record to arrive at a finding that plaintiff was actually given by his biological parents to Ratneswar and his wife and Ratneswar had actually taken the plaintiff by way of adoption. Not only physical Act of handing over and taking over, there is nothing on record to show that there was at all ceremony held for the purpose. As pointed out above, execution of document is neither required under the Act nor under the scriptural law of Smritis. But there has to be severance of ties with the biological parents. The exhibits adduced by the plaintiff are eloquent against him showing that even after alleged adoption, he continued identifying himself as a son of Jiban Das, his biological parent and not of Ratneswar. The learned courts below, therefore, have not committed error in holding that plaintiff failed to prove adoption in accordance with law. Having so noticed, both substantial questions of law are required to be decided against the appellant and they are accordingly decided. Consequently, the appeal fails. 20. No order as to costs. Send down the lower court records.