Only because Ganesh had allowed the plaintiff and her family to live at Salt Lake or he for some reasons or this other had been residing with them for some time, the same by itself would not be a proof of adoption. The result or consequence of a valid adoption is that the adopted son severes all the ties with the natural family and becomes a member of his adoptive parents. Apart from the fact that the adoption ceremony has not been proved, the documents proved on behalf of the defendant overwhelmingly show that the conduct of Ganesh was such that till his death he had been considering Saila Bala as his own mother inasmuch as there was absolutely no reason as to why he not only described her as his mother but also made her a nominee in relation to his Life Insurance Policy, Provident Fund etc.
16. If Ganesh had been voluntarily adopted, there is also no reason as to why on the death of Gopal Chandra Mukherjec his natural father, he would be a party to the Shradh ceremony and his name would appear as one of the sons,of Gopal Chandra Mukherjee. Furthermore, there is absolutely no reason as to why after the death of Ganesh himself the Shradh ceremony would be performed by his brothers, it is not the case of the plaintiff that Shradh Ceremony of Ganesh was performed by her or her daughters.
Calcutta High Court
Smt. Prafulla Bala Mukherjee vs Satish Chandra Mukherjee And Ors. on 24 September, 1997
1. The plaintiff-appellant filed a suit claiming, inter alia, the following reliefs :--
"a) A decree for a declaration of the absolute right, title and interest of the plaintiff in respect of a two storied house at BD-280, Salt Lake City, Police Station Salt Lake, 24-Parganas more fully described in the Schedule written hereunder:
b) A decree for perpetual injunction restraining the defendant No. 1 and each of his relatives and representatives from creating any nuisance and/or interfering with the occupation and possession of the plaintiff and the members of the family and also restraining the defendant No. 1 from inducting other person/persons on the ground floor of the said two storied house at BD-280Salt Lake City 24-Parganas more fully described in the schedule written hereunder."
2. Shortly stated the fact of the matter is as follows :
The plaintiff was the sisterof Gopal Mukherjee. She and her husband adopted Ganesh Chandra Mukherjee in the yer 1949, one of the five sons of the said Gopal Mukherjee. Admittedly, the plaintiff has three daughters. The aforementioned Ganesh Chandra Mukherjee was an employee of State Bank of India. A plot of land being BD-280 Salt Lake City was allotted in his name and he allegedly constructed a two storeyed building thereon. He along with the plaintiff and her daughters started living in the said house. The aforementioned Ganesh Chandra Mukherjee died in 1984 whereafter the plaintiff became the owner of the property. However, the defendants who are sons of the said Gopal Mukherjee forcibly occupied the ground floor of the said building and on that ground the aforementioned suit was filed.
3. The defendants in their written statement denied and disputed the aforementioned allegations made in the plaint. They in particular denied that Ganesh ChanUra Mukherjee was ever given in adoption to plaintiff and her husband. In fact, according to them the relationship between two families at the relevant time was strained.
4. The learned trial Judge in view of the aforementioned pleadings of the parties framed the following issues :--
1. Is the suit maintainable ?
2. Is the suit barred by any provision of law ?
3. Is the plaintiff entitled to get a decree as prayed for ?
4. To what other relief or reliefs, if any, is the plaintiff entitled ?
Additional Issues :
5. Did the plaintiff take Ganesh Mukherjee in adoption from his father ?
6. Has the plaintiff any right, title and interest over the property at BD-280 Salt Lake City, Section-I as described in the Schedule of the plaint ?
5. The plaintiff examined herself as P.W. 1. She in her examination-in-chief, inter alia, stated that the family of Ganesh Ch. Mukherjee had been living in East Pakistan and they had come down to Rishra in the year 1948 and at that point of time health of Ganesh was very bad. She denied that the relationship of the parties was had. Ganesh allegedly took shelter in the family of the plaintiff when he was ill and started living with them at Salkia. P.W. 1 further stated that Ganesh had been given in adoption and had been living as her son. From her evidence it appears that allegedly Ganesh was treated as her son. She further alleged that her daughters also contributed for construction of the building. P.W. 1, however, could not prove the actual ceremony of adoption.
6. The defendant also examined witnesses and proved various documents to show that at all point of time Ganesh had been treating his natural parents as his parents. The learned trial Judge, inter alia, found that the suit was not maintainable in view of proviso appended to Section 34 of the Specific Relief Act, 1963 as admittedly the defendants are in occupation of a portion of the suit property. The learned counsel for the appellant submit that the suit for recovery of possession filed by the defendants in respect of the first floor of the building in question is immterial for the purpose of determination of the maintainability of the suit.
7. As regard Issue Nos. 3, 4, 5 and 6 which were decided together, the learned trial Judge, in substance found that both documentary and oral evidences negative the contention of the plaintiff that Ganesh was given in adoption by Gopal Mukherjee and his wife. He found that the witnesses examined on behalf of the plaintiffs themselves have shown that the plaintiff s daughter and Ganesh, since deceased, were treating themselves as cousins' and not as brother and sisters.
8. The defendants have exhibited various documents. Defendants have produced certain letters to show that Ganesh had all along been treating Sailabala Mukherjee (his natural mother) as his mother. He even nominated her as a nominee in the Insurance Policy. Exts. J and J1. He on the death of his mother performed shradh ceremony, the invitation card wherefor was marked as Exbt. F. Similarly on his death, his shradh ceremony was performed by his other brothers. The shradh ceremony card was marked Exbt. F/1. They have also produced the deed of purchase of the land dated 17-12-71 which was marked as Exbt. R. They have also proved Ganesh Mukherjee's Matriculation Certificate, Appointment Letter and various other documents to show that Ganesh had been treating his natural family as his own family. On the other hand, the oral and documentary evidences adduced on behalf of the plaintiff merely show that the plaintiff and her daughters were living at the house of the Salt Lake City.
9. Mr. Bose, the learned counsel appearing on behalf of the plaintiff-appellant had taken us through the entire evidence on record and submitted on the basis thereof that for the purpose of proving adoption the entire circumstances including the conduct of the parties have to be considered. The learned Counsel submitted that where an adoption takes place a long time back it may not be possible to prove the actual giving and taking ceremony for a valid adoption and in support of his aforementioned contention the learned Counsel has relied upon in V. Ramarao v. K. Bhaskararao and
L. Debi Prasad v. Smt. Tribeni Devi .
10. According to the learned counsel the doctrine of factum valet has to be applied in such a situation. As regard certain letters written by Ganesh Mukherjee to the plaintiff, it was submitted that such letters .would be admissible in terms of Sub-section (5) of Section 32 of the Evidence Act and in this connection reliance has been placed in Kalidindi Venkata Subbaraju v. Chintalapati Subbaraju .
11. According to the learned counsel the burden of proof was on the defendant. Reliance in this connection has been placed in A. Raghavamma v. A. Chenchamma and Smt. Swarnamayi
Panigrahi v. Land Acquisition Collector-.
12. Mr. S. P. Roy Chowdhury, the learned Counsel appearing on behalf of the respondent, on the other hand, submitted that there are overwhelming evidences to show that Ganesh had never been given in adoption. The learned Counsel further submitted that admittedly Ganesh was aged about 19 years in the year 1949 when the allowed adoption took place. It has also been brought on records that in the year 1944 his 'Upanayan' ceremony had been held and, thus, in terms of the Hindu Law as it then stood such adoption was illegal Reliance in this connection has been placed in Karunapejjalage Bilindi v. Wellawa Attadassi Thero reported in AIR 1946 PC 48, Smt. Surabala Devi v. Sudhir Kumar Mukhopadhyay , Sukdeo Sahi v. Kapil Deo
Sing and L. Debi Prasad v. Smt. Tribeni
Devi .
13. As regard the standard of proof the learned Counsel has relied upon R. Puthunainar Alhithan v. P.H. Pandian .
Having gone through the materials on records as also the documentary evidences we are satisfied that the learned trial Judge has arrived at a correct conclusion. For the purpose of proving a valid adoption three ingredients must be proved : (1) capability of the person being given in adoption; (2) consent of the parties in giving.and taking adoption; and (3) the giving and taking ceremony.
14. The evidences on record show that at the relevant point of time the relationship of the family was strained. Furthermore, the Matriculation Certificate, Exbt. 4, clearly shows that Ganesh passed has Matriculation examination in the year 1944 and at that point of time his age was 14 years 2 months. Thus, he was about 19 years of age in the year 1949. Although prior to coming into force of the Hindu Adoptions and Maintenance Act, 1956 there was no bar in adopting a major, but it is beyond any cavil of doubt that the onus is upon a person who pleads an adoption.
15. Only because Ganesh had allowed the plaintiff and her family to live at Salt Lake or he for some reasons or this other had been residing with them for some time, the same by itself would not be a proof of adoption. The result or consequence of a valid adoption is that the adopted son severes all the ties with the natural family and becomes a member of his adoptive parents. Apart from the fact that the adoption ceremony has not been proved, the documents proved on behalf of the defendant overwhelmingly show that the conduct of Ganesh was such that till his death he had been considering Saila Bala as his own mother inasmuch as there was absolutely no reason as to why he not only described her as his mother but also made her a nominee in relation to his Life Insurance Policy, Provident Fund etc.
16. If Ganesh had been voluntarily adopted, there is also no reason as to why on the death of Gopal Chandra Mukherjec his natural father, he would be a party to the Shradh ceremony and his name would appear as one of the sons,of Gopal Chandra Mukherjee. Furthermore, there is absolutely no reason as to why after the death of Ganesh himself the Shradh ceremony would be performed by his brothers, it is not the case of the plaintiff that Shradh Ceremony of Ganesh was performed by her or her daughters.
17. Various other documents, the details whereof need riot be gone into as the learned trial Judge has dealt with the same in details, also go to show that Ganesh was treating the family of the defendants, as his own family.
18. Furthermore in Section 480 (4)(i) of the Mulla's Hindu Law it is stated that in Bengal, Benares, Bihar and Orissa adoption must be made before upanayana, that is before the boy is in vested with the sacred thread.
19. In Smt. Surabala Devi v. Sudhir Kumar Mukhopadhyay , this court while considering a case of adoption of a child governed by Dayabhag School of Hindu Law, upon considering various treatises on shastras held :
"(1) There is no age-limit as such for adoption.
(2) But it is essential that all post-tonsure ceremonies (beginning with upanayana in the case of the regenerate castes and marriage in the case of the Sudras) must be capable of being performed and must be performed in the family of the adopter.
As acordolary to (2), it follows that where the upanayana ceremony has already been performed in the family of birth, no valid adoption can be made."
20. In the instant case there is no dispute that the parties were Brahamins i.e. twice born. In that view of the matter there cannot be any doubt whatsoever that the adoption was not valid.
21. In Surabala Devi's case (supra) it is stated :
"In one passage Dattaka Chandrika seems to have suggested that the adoption must take place before the primary age prescribed for upanayan expires, which is 8 years from conception in the case of Brahmins and 11 and 12 years in the case of Khatrias and Vaisayas respectively. The view expressed is that although the upanayan ceremony can be performed in the secondary season, yet as the relationship of father and son was wanting between the adopter and the adoptee at the primary season, the adoptive father cannot perform these ceremonies at the secondary season. Sutherland, however, in commenting upon Dattaka Chandrika, has pointed out that the non-performance of upanayan ceremony at the proper season is not an insuperable bar to adoption and it can be performed in the family of adoption if the putreshthi ceremony is gone through as a form of expiation."
22. In this view of the matter it is also hot possible to accept that Ganesh could be adopted at the age of 19 years when this sacred thread took place at the age of 12.
this court while considering the matter of adoption of Brahamin boy of a family governed by Benaras School of Hindu Law following the aforementioned decision in Surabala Dasi v: Sudhir Kumar Mukhopadhyay held :
"But the law is that for a valid adoption, not only the person adopting should be capable of lawfully taking in adoption, but the person giving . must be capable of lawfully giving in adoption and the person adopted must be capable of being lawfully taken in adoption. It is necessary that all these three conditions should be satisfied, and it is not sufficient that only one of them be satisfied."
24. In this situation there is no other option but to hold that the plaintiff has failed to prove a valid adoption.
25. Moreover, in L. Debi Prasad v. Smt. Tribeni Devi , the Supreme Court referred to the decision of Balinki Padhano v. Gopal Krishna Padhano
and Addagada Raghavamma v. Addagada Chenchamma upon which Mr. Bose has placed reliance and stated the law thus (at p. 1289 of AIR):
"It is true, as observed by this Court in Addagada Raghavamma v. Addagada Chenchamma that it is well-settled that a person who seeks to displace the natural succession to property by alleging an adoption must discharge the burden that lies upon him by proof of the factum of adoption and its validity. Again as held by this Court in Lakshman Singh Kothari v. Smt. Rup Kanwar that in order that an adoption may be valid under the Hindu Law, there must be a formal ceremony of giving and taking. This is true of the regenerate castes as well as of the Sudras. Although no particular form is prescribed for the ceremony, the law requires that the natural parent should hand over the adoptive boy and the adoptive parent must receive him, the nature of the ceremony varying according to the circumstances."
26. In the instant case the plaintiff claims herself to be the adoptive mother. Thus, it is not a case where direct evidence was not available. Furthermore, even if the conduct of the parties be taken into account, there are overwhelming evidence to suggest that Ganesh was not given in adoption to the plaintiff and her husband. As the factum of adoption itself has been held to be not proved the question of applying the doctrine of factum valet does not arise.
27. Before parting with this case it may be placed on records that we have not entered into the question as to whether the plaintiffs daughters had also contributed in construction of the house in question as the said question does not fall for consideration in this appeal.
28. For the reasons aforementioned there is no" merit inthis appeal which is accordingly dismissed with costs. Advocates fee assessed at 100 Gms.
B. Bhattacharya, J.
29. I agree.
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