The learned counsel for the respondent,
plaintiff submitted that to ascertain as to whether the
witnesses to adoption are trustworthy, surrounding
circumstances also need to be considered. On this point
he placed reliance on the case reported as AIR 1968
Mysore 309 (Govinda v. Chimabai). The High Court
referred a case of the Supreme Court reported as AIR
1965 SC 354 (Ramchandra v. Champabai) for discussing
the importance of surrounding circumstances for
ascertaining the trustworthiness of witnesses. The
observations are at paragraph 20 of the case of the
Mysore High Court and they are as under :-
“20. ….. “In order to judge the credibility of the witnesses,
the Court is not confined only to the way in which the
witnesses have deposed or to the demeanour of witnesses,
but it is open to it to look into the surrounding
circumstances as well as the probabilities, so that it may
be able to form a correct idea of the trustworthy of the
witnesses. The issue … cannot be determined by
considering the evidence adduced in the court separately
from the surrounding circumstances which have also been
brought out in the evidence, or which appear from the
nature and contents of the document itself … “
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Second Appeal No. 45 of 1995
Saraswati w/o Keshav Mandve,
V
Chandrabhan s/o Baliram Kale,
CORAM: T.V. NALAWADE, J.
DATE : 11th JANUARY 2016
Citation: 2016 (6) MHLJ 668
1) The appeal is filed against the judgment and
decree of Regular Civil Appeal No.351 of 1984 which was
pending in the District Court Beed. The District Court,
first appellate Court, has set aside the judgment and
decree of trial Court, the Civil Judge, Junior Division,
Beed. Present respondent, plaintiff, had prayed for relief
of declaration in respect of immovable properties and the
sale transactions and such decree is given by the first
appellate Court. Both the sides are heard.
2) Survey No.84 admeasuring 2 acres 15 gunthas
and survey No.92 admeasuring 1 acre 35 gunthas situated
at village Ghargaon, Tahsil and District Beed are the suit
lands. One house property situated in village Ghargaon is
also suit property. Its number is not given but the
boundaries of the property are given.
3) One Rambhau was natural father of the plaintiff
Chandrabhan. Baliram was real brother of Rambhau and
they were residents of Ghargaon. Defendant No.1
Yamunabai is widow of Baliram and defendant No.2
Champabai is a daughter of sister of Yamunabai.
Defendant No.2 is the wife of plaintiff Chandrabhan.
During pendency of the suit Yamunabai died.
4) It is the case of the plaintiff that Baliram had no
issue and Rambhau had two sons and daughters. It is
contended that right from beginning Baliram had treated
the plaintiff as his son and ultimately he adopted the
plaintiff in the year 1950. It is contended that plaintiff was
aged about 14 years at the relevant time. It is contended
that the plaintiff was adopted in the presence of panchas
and respectable persons and adoption ceremonies were
performed as per custom of society of the plaintiff. It is
contended that parties are Sudras as per Hindu law.
5) It is the case of the plaintiff that after the
adoption, he lived with Baliram and defendant No.1 in the
house of Baliram and he was treated as son by them. It is
contended that after six months of the adoption, in the
year 1951, Baliram died. It is the case of the plaintiff that
the suit properties were owned by Baliram and since the
death of Baliram the plaintiff has been in possession of the
suit properties.
6) It is the case of the plaintiff that the income of
the aforesaid properties was not sufficient for the
livelihood and so he shifted to village Wadgaon, Tahsil
Kaij, District Beed. It is contended that he did labour work
there and he maintained defendant Nos.1 and 2.
7) It is the case of the plaintiff that defendant
No.1 in collusion with Talathi of the village entered her
name in 7/12 extract of the suit properties behind his
back. It is his case that defendant No.1 executed gift deed
in favour of defendant No.2 Champabai and then name of
Champabai was also entered in the revenue record. It is
contended that the suit house was however entered in the
name of the plaintiff. It is contended that aforesaid entries
in the record of agricultural lands were made behind his
back and so they are not binding on him. It is contended
that cause of action took place when he learnt about such
entries on 1-4-1979 and when he received information
that defendant No.1 and 2 were trying to dispose of the
suit properties.
8) The suit was filed on 9-5-1979. During
pendency of the suit, on 28-5-1979, the suit lands were
sold by defendant Nos.1 and 2 in favour of defendant
Nos.3 to 6 and amendment was carried out in the plaint
on 15-7-1982 and this circumstance was mentioned and
plaintiff then claimed relief of declaration that sale deeds
are not binding on him.
9) Defendant Nos.1 and 2 filed joint written
statement. They denied that plaintiff was adopted by
Baliram. They denied that during life time of Baliram,
plaintiff had lived in the house of Baliram with Baliram
and Baliram was treating plaintiff as his son. They
however admitted that plaintiff is son of Ramrao and
Ramrao was brother of Baliram.
10) It is the case of defendant No.1 and 2 that the
suit properties and other agricultural lands like Survey
Nos.86/1, 100/3 and 109/2 situated at Ghargaon were also
owned by Baliram. It is contended that, these lands were
sold by defendant No.1 long back, as she was the owner of
these lands.
11) It is the case of the defendants that plaintiff
lived in Wadgaon since many years. They have contended
that plaintiff never maintained them. It is contended that,
since many years defendant No.2 is deserted by plaintiff
and defendant No.2 maintained defendant No.1. It is the
case of the defendant Nos.1 and 2 that due to harassment
of plaintiff and his brother, they left Ghargaon and they
shifted to Chausala and after that plaintiff managed to get
possession of the aforesaid house property.
12) It is the case of the defendant Nos.1 and 2 that
after the death of Baliram, suit properties and other
properties were entered in the name of defendant No.1 as
she is only successor of Baliram. It is their case that from
the years 1955 to 1958 plaintiff had some how managed to
enter his name in the crop cultivation column of the suit
lands. It is contended that during those days defendant
No.2 was living with plaintiff. It is contended that in the
year 1959-60 correction was made in the revenue record,
name of the plaintiff was removed and from the year
1961 onwards, the name of defendant No.1 was entered
both in ownership and cultivation columns.
13) It is the case of the defendant Nos.1 and 2 that
on 14-7-1972 defendant No.1 gifted the suit lands to
defendant No.2 and accordingly entries in revenue record
were made in favour of defendant No.2. It is contended
that from the date of gift, defendant No.2 cultivated the
suit lands. They have denied that the plaintiff had no
knowledge about the aforesaid mutations and the
transactions.
14) It is the case of the defendants that defendant
No.1 had succeeded to the properties of Baliram and so
she sold Survey No.86/1 to one Housrao Tulsiram Dhas
under sale deed dated 2-2-1966. She sold Survey
Nos.100/3 and 109/2 under sale deed on 9-9-1971 to one
Mukund Bhanudas Dhas. It is contended that under these
sale deeds possession was given of these lands to the
purchasers and those lands are still with the purchasers.
It is contended that, the circumstance that the plaintiff
has not challenged these sale deeds shows that he was
never adopted by Baliram. It is contended that the suit
lands were also sold under registered sale deeds to
defendant Nos.3 to 6 and the possession is handed over by
defendant Nos.1 and 2 to these defendants. It is
contended by defendant Nos.1 and 2 that the case of the
plaintiff that he is in possession of suit property is false.
15) Written Statement was filed by other
defendants also and their contentions are similar to the
contentions made by defendant Nos.1 and 2.
16) Issues were framed by the trial Court on the
basis of aforesaid pleadings. Both sides gave evidence.
The case of the plaintiff rests mainly on the contention of
his adoption by Baliram in the year 1950. If he fails to
prove the adoption, he cannot get any relief. The trial
Court had held that plaintiff failed to prove his adoption
by Baliram. The trial Court had refused to believe the
witnesses examined by the plaintiff who have given direct
evidence on adoption. No document of adoption was
created as per the case of the plaintiff and even the names
of witnesses were not mentioned in the pleadings by the
plaintiff. The trial Court considered the direct evidence
and also the surrounding circumstances while giving
decision. The first appellate Court has held that the
inconsistencies appearing in the evidence of the witnesses
to adoption are minor and they can be ignored as the
evidence was given after many years of the adoption. The
first appellate Court has placed reliance on some
observations made by the Orissa High Court in a reported
case.
17) This Court, other Hon'ble Judge, admitted the
present appeal by observing that substantial questions of
law can be formulated on the grounds mentioned in
appeal memo as Ground Nos. K, P, Q, R and S. No specific
questions were formulated. The substantial questions of
law can be formulated on the basis of those grounds as
under :-
(I) Whether the first appellate Court has committed
error in not considering the circumstance that other
transactions of sale made by the defendant No.1 in
respect of three agricultural lands like Survey
Nos.86/1, 100/3 and 109/2 which were left behind by
Baliram are not challenged by the plaintiff in the suit ?
(II) Whether the first appellate Court has committed
error in not considering the circumstance that after
the death of Baliram name of defendant No.1 only was
mutated in the revenue record as successor of
Baliram and the name of the plaintiff was not entered
as successor of Baliram ?
(III) Whether the first appellate Court has committed
error in not considering the circumstance that the
cooperative credit society could not have given loan
to the plaintiff on the lands left behind by Baliram as
plaintiff was not shown as owner in the revenue
record and further there is the circumstance that it is
defendant No.1 who had repaid the loan ?
(IV) Whether the first appellate Court has committed
error in not giving due weight to the circumstance
like plaintiff never used name of Baliram as his father
anywhere and he continued to use the name of his
natural father Rambhau ?
This Court allowed both the sides to argue on following
substantial question of law also :-
(V) Whether due to absence of specific pleadings
with regard to particulars of adoption and due to
inconsistencies in the evidence of the witnesses it can
be said that there is sufficient evidence to prove the
factum of adoption ?
18) Before considering the evidence given by both
the sides, it is necessary to quote the position of law. The
first appellate Court has relied on some observations
made by Orissa High Court in the case reported as AIR
1976 Orissa 43 (Gouranga Sahu v. Bhaga Sahu). The
observations used are as under :
"Hindu Law Adoption Burden of proof Mode of
appreciation of evidence adoption 36 years old variety of
transactions of open life and conduct on footing that
adoption was valid taking place. Burden rests on him, who
challenges validity of adoption."
19) In the present case there is specific contention
that plaintiff's adoption took place in the year 1950.
Plaintiff has deposed that he remembers the factum of
adoption and there are witnesses available in whose
presence the adoption took place including the priest. In
view of these circumstances, it cannot be said that
adoption was ancient, no direct evidence is available on
adoption and the inconsistencies can be ignored. Other
part of the reasoning given by the first appellate Court is
being discussed at appropriate place.
20) In the cases reported as (1) AIR 1983 SC 114
(Madhusudan Das v. Narayani Bai); (2) A.I.R. (32) 1945
Nagpur 60 (Maroti Bansi Teli v. Radhabai); and, (3) AIR
1970 SC 1286 (L. Debi Prasad v. Tribeni Devi) Shatrik
Hindu Law is discussed. In these cases it is made clear
that for proving the adoption, giving and taking are
absolutely necessary. Giving and taking is operative part
of the ceremony of adoption and so physical act of giving
and taking must be proved even if there is a deed of
adoption. In these cases, it is laid down that the evidence
on giving and taking must be free from suspicion of fraud.
It is made clear in aforesaid cases that no particular form
of adoption is required but for proving factum of adoption,
it needs to be proved that natural father was asked by
adoptive parents to give his son in adoption and then the
natural father had handed over the son and the adoptive
parents took the boy for adoption. These cases show that
the requisites of giving and taking need to be fulfilled
even in case of Sudra.
21) In the case reported as AIR 1930 PC 79 (Dal
Bahadur Singh v. Bijai Bahadur Singh) it has been made
clear that adoption must be beyond suspicion and of
unimpeachable character. It is laid down that proof should
be strict and severe. This decision is reiterated in many
cases by various High Courts including Bombay High
Court and the Supreme Court in the cases like AIR 1983
SC 114 (cited supra) and 1977 Mh. L.J. 68 (Laxman
Ganpati Khot v. Anusuyabai) (Bombay High Court). In
these cases provision of section 101 of the Evidence Act is
referred and provision of section 3 of the Evidence Act for
the purpose of definition of proof is also referred. It can
be said that in view of provision of section 60 of the
Evidence Act, direct evidence on adoption must be given
when it is available. This Court in the case of Laxman
(cited supra) has referred two more cases of Privy Council
like (1) AIR 1931 PC 84 (Padmalav v. Fakira Debya); and,
(2) AIR 1949 PC 18 (Muthuswami v. Chidambara).
Specific observations can be found at para 4 of this Court
(supra) and they are as follows :-
"4. Three questions really arise in this appeal and have
been argued before us, and they are, (1) whether, in view
of the provisions of sections 4 and 10(iv) read with section
3(a) of the Hindu Adoptions and Maintenance Act, 1956, it
is open to the first defendant to prove that there was a
custom or usage applicable to the parties which permitted
persons who were over the age of 15 to be taken in
adoption; (2) whether any such custom or usage has been
proved in the present case; and (3) whether the first
defendant has succeeded in proving the factum of the
adoption on which he relies. In the view which I take on
the third question relating to the factum of the adoption, it
is not really necessary for me to decide the first two
questions, but I will briefly indicate at the end of this
judgment my views in regard to the same. I will, therefore,
proceed to consider the evidence, oral as well as
documentary, which has been led in the trial Court to prove
the factum of the alleged adoption of the first defendant by
the deceased Anna on the 25th of January 1959. There can
be no doubt that the onus of proving the factum of the
adoption is on the first defendant who relies on it, but
before I proceed to discuss the evidence relating to the
same, I would prefer to refer to three decisions of the Privy
Council in regard to the extent of that onus. In the case of
Dal Bahadur v. Bijay Bahadur the question was really one
of proving whether or not authority had been conferred
upon the widow to adopt. In dealing with the question of
the extent of onus, Lord Buckmaster laid down the legal
position in the following terms (at page 81, Cols.1-2):--
"Their Lordships’ Board think it would be impossible to rely
on this piece of evidence and this piece of evidence alone for
the purpose of satisfying the very grave and serious onus that
rests upon any person who seeks to displace the natural
succession of property by the act of an adoption. In such a
case the proof requires strict and almost severe scrutiny, and
the longer the time goes back from the date when the power
was given to the time when it comes to be examined, the
more necessary it is, having regard to the fallibility of human
memory and the uncertainty of evidence given after the lapse
of such time, to see that the evidence is sufficient and
strong."
As the Privy Council was unable to find that the evidence
before them was sufficient for that purpose, they allowed
the appeal and restored the decree of the subordinate
Judge holding that the adoption was not proved. In the
case of Padmalav v. Fakira Debya, following earlier
decisions of its own, the Privy Council took the view (at
page 87, Col.1) that proof of the adoption must be free
from all suspicion of fraud and so consistent and probable
as to leave no occasion for doubt of its truth, and the
evidence in support of the same should be of
"unimpeachable character." In that connection, their
Lordships further observed (page 88, Col.1) that even an
admission made by the plaintiff during her widowhood
while she was entirely in the power of her husband's
relations, would necessarily carry much less weight that, if
made at an earlier period. Dealing then with a clause in
the compromise arrived at between the parties under
which the widow completely renounced her claim to
succeed to her husband's estate, their Lordships of the
Privy Council stated (at pages 88-89) that the same, far
from dispersing the clouds of suspicion raising upon both
the adoptions in question was calculated to darken them,
and concluded their judgment by stating that both the
adoptions in question before them were most improbable
in themselves and were "not supported by the
contemporaneous evidence which ought to have been
forthcoming." The Privy Council, therefore, confirmed the
judgment of the High Court holding that the adoptions
were not proved. In the case of Muthuswami v.
Chidambara where also the question of the factum of the
adoption was in dispute, though there was an alleged
adoption deed on which reliance was placed in support of
that adoption, the Privy Council held that the adoption to
be not proved observing as follows :-
"All the witnesses seem to have been friends or relations of
the parties and there is no corroboration of their testimony
such as is often found in cases of disputed adoption. No priest
or local official who might be regarded as disinterested was
called; no cards of invitation to the ceremony were produced,
and there was no photograph of the ceremony. The direct
evidence in support of the ceremony was therefore weak ...."
From these judgments of the highest Court, it is, therefore,
clear that since adoption displaces the normal order of
succession, Courts, must insist upon strict and even severe
standards of proof, and the evidence by which the adoption
is sought to be proved must be beyond suspicion and of
unimpeachable character."
22) The learned counsel for the respondent,
plaintiff submitted that to ascertain as to whether the
witnesses to adoption are trustworthy, surrounding
circumstances also need to be considered. On this point
he placed reliance on the case reported as AIR 1968
Mysore 309 (Govinda v. Chimabai). The High Court
referred a case of the Supreme Court reported as AIR
1965 SC 354 (Ramchandra v. Champabai) for discussing
the importance of surrounding circumstances for
ascertaining the trustworthiness of witnesses. The
observations are at paragraph 20 of the case of the
Mysore High Court and they are as under :-
“20. ….. “In order to judge the credibility of the witnesses,
the Court is not confined only to the way in which the
witnesses have deposed or to the demeanour of witnesses,
but it is open to it to look into the surrounding
circumstances as well as the probabilities, so that it may
be able to form a correct idea of the trustworthy of the
witnesses. The issue … cannot be determined by
considering the evidence adduced in the court separately
from the surrounding circumstances which have also been
brought out in the evidence, or which appear from the
nature and contents of the document itself … “
23) The learned counsel for the respondent placed
reliance on another case reported as AIR 1970 SC 1286 (L
Debi Prasad v. Tribeni Devi). He submitted that even
when there is no direct evidence of adoption, on the basis
of surrounding circumstances, Court can draw inference
about the adoption. This Court has already observed that
fact of adoption can be proved as mentioned in section 3
of the Evidence Act like “any other fact”. But when direct
evidence is available, in view of provision of section 60 of
the Evidence Act, such evidence must be given. In the
reported case (cited supra) observations with regard to
dispensing with the direct evidence are made by the Apex
Court at para 10 and the observations are as follows :-
“10. In the case of all ancient transactions, it is but
natural that positive oral evidence will be lacking. Passage
of time gradually wipes out such evidence. Human affairs
often have to be judged on the basis of probabilities.
Rendering of justice will become impossible if a particular
mode of proof is insisted upon under all circumstances. In
judging whether an adoption pleaded has been
satisfactorily proved or not, we have to bear in mind the
lapse of time between the date of the alleged adoption and
the date on which the concerned party is required to
adduce proof. In the case of an adoption said to have
taken place years before the same is questioned, the most
important evidence is likely to be that the alleged adoptive
father held out the person claiming to have been adopted
as his son; the latter treated the former as his father and
their relations and friends treated them as father and son.
There is no predetermined way of proving any fact. A fact
is said to have been proved where after considering the
matters before it, the Court either believes it to exist or
considers its existence so probable that a prudent man
ought, under the circumstances of the particular case, to
act upon the supposition that it exists. Hence if after
taking an overall view of the evidence adduced in the
case, we are satisfied that the adoption pleaded is true, we
must necessarily proceed on the basis, in the absence of
any evidence to the contrary, that it is a valid adoption as
well.”
For making the aforesaid observations, the Apex Court has
considered peculiar circumstances of that case which are
at paragraphs 12 to 16 and circumstances were as under :
(i) That, Shyamlal, party of the proceeding, who was
contending that he was adopted by Gopal Das, was
adopted immediately after his birth and so he was not in a
position to give evidence on factum of adoption.
(ii) The adoption had taken place more than 54 years
prior to the date of challenge and during life time of Gopal
Das and his wife, the adoption was not challenged by
anybody. Suit was filed against Shyamlal only after the
death of Gopal Das and his wife;
(iii) as many years had passed since the date of adoption,
there was no direct evidence to prove factum of adoption
but there were other circumstances indicating that
Shyamlal was treated as adopted son by Gopal Das for
about 54 years;
(iv) Shyamlal was admitted in school by adoptive father
Gopal Das and application was given to the school by
Gopal Das for getting admission to Shyamlal in which
Gopal Das had given his name as father of Shyamlal;
(v) in a suit in which Gopal Das was a party he had
given deposition that Shyamlal was his adopted son;
(vi) in income tax returns filed by Gopal Das he had
shown Shyamlal as a member of his joint Hindu family;
and,
(vii) In another suit in which Gopal Das and the plaintiff
of the litigation filed against Shyamlal, were on one side
as plaintiffs and in the said proceeding Gopal Das and the
plaintiff had contended that they were partners of the
firm. In that proceeding also Gopal Das had given
deposition that Shyamlal was his son.
24) In the case of the Supreme Court (cited supra)
there was no direct evidence available but there were
aforesaid circumstances showing that Gopal Das had
admitted that he had adopted Shyamlal as his son and he
had treated Shyamlal as his son for more than 54 years.
The Apex Court held that it was ancient adoption and in
view of the facts of that case the Court ought not to have
insisted for direct evidence for proving the factum of
adoption. There cannot be dispute that in view of such
peculiar circumstance it was not proper on the part of the
Court to insist for direct evidence on the factum of
adoption.
25) The aforesaid discussion on law shows that
ordinarily when direct evidence is available, the Court
must insist for proof of factum of adoption on the basis of
direct evidence. Even when there is a document of
adoption, the Court is expected to insist for proof of
factum of valid adoption when direct evidence is available.
There may be surrounding circumstances in existence,
which may be consistent or inconsistent with the direct
evidence. In such cases it becomes the duty of the Court
to ascertain as to whether the witnesses who have given
direct evidence on adoption are trustworthy or not and
that needs to be done on the basis of the surrounding
circumstances.
26) The facts of the aforesaid reported case
indicate that there may be surrounding circumstances like
mutation made in favour of a party claiming rights as
adopted son or there may be circumstances that such a
party had performed last rites of the deceased (adoptive
parents) or the marriage of such party was solemnized by
deceased. On the basis of such circumstances only the
Court is not expected to draw inference that these things
were done only due to adoption. When the Court comes to
the conclusion on the basis of so called direct evidence
that there was no valid adoption, surrounding
circumstances cannot help in proving valid adoption. In
the cases (cited supra) the other probabilities available for
explaining such circumstances are discussed. In one case
it is observed that when no son was born from deceased,
performance of last rites by brother of the deceased or
son of such brother is possible under Hindu law and so
such circumstance cannot weigh much for proving
adoption. Thus, the Court is expected to start with
presumption that the proof of factum of adoption must be
strict and severe.
27) In the case reported as AIR 1983 SC 114 (cited
supra) at para 8 the Apex Court has discussed the scope
available for the appellate Court of appreciation of oral
evidence. The observations are as under :-
“8. The question whether the appellant was in fact
adopted by Jagannathdas and Premwati has been
determined essentially on the basis of oral testimony, and
reference has been made to a few documents only in
supplementation of the oral evidence. At this stage, it
would be right to refer to the general principle that, in an
appeal against a trial Court decree, when the appellate
Court considers an issue turning on oral evidence it must
bear in mind that it does not enjoy the advantage which
the trial Court had in having the witnesses before it and of
observing the manner in which they gave their testimony.
When there is a conflict of oral evidence in any matter in
issue and its resolution turns upon the credibility of the
witnesses, the general rule is that the appellate Court
should permit the findings of fact rendered by the trial
Court to prevail unless it clearly appears that some special
feature about the evidence of a particular witness has
escaped the notice of the trial Court or there is a sufficient
balance of improbability to displace its opinion as to where
the credibility lies. In this connection reference may
usefully be made to W.C. MacDonald v. Fred Latimer, AIR
1929 PC 15, 18 where the Privy Council laid down that
when there is a direct conflict between the oral evidence
of the parties, and there is no documentary evidence that
clearly affirms one view or contradicts the other, and there
is no sufficient balance of improbability to displace the
trial Court's findings as to the truth of the oral evidence,
the appellate Court can interfere only on very clear proof
of mistake by the trial Court. In Watt v. Thomas, 1947 AC
484, 486 it was observed “…. it is a cogent circumstance
that a Judge of first instance, when estimating the value of
verbal testimony, only, has the advantage (which is denied
to Courts of appeal) of having he witnesses before him and
observing the manner in which their evidence is given”.
This was adverted to with approval by the Privy Council in
Sara Veeraswamui v. Taluri Narayya (deceased), AIR 1949
PC 32 and found favour with this Court in Sarju Parshad v.
Raja Jwaleshari Pratap Narain Singh, 1950 DSCR 781,
783. It seems to us that this approach should be placed in
the forefront in considering whether the High Court
proceeded correctly in the evaluation of the evidence
before it when deciding to reverse the findings of the trial
court. The principle is one of practice and governs the
weight to be given to a finding of fact by the trial court.
There is, of course, no doubt that as a matter of law if the
appraisal of the evidence by the trial court suffers from a
material irregularity or is based on inadmissible evidence
or on a misreading of the evidence or on conjectures and
surmises the appellate court is entitled to interfere with
the finding of fact. Our attention has been drawn by the
respondents to The Asiatic Steam Navigation Co. Ltd. v.
Sub-Lt. Arbinda Chakravarti, (1959) Supp 1 SCR 979 but
nothing said therein detracts, in our opinion, from the
validity of the proposition enunciated here.”
28) When the case of adoption rests on direct
evidence and there is nothing like document of adoption
or Yadi prepared for adoption and the adoption itself is
challenged by a party like widow against whom rights are
claimed by so called adopted son, the Court is expected to
take more care while appreciating the direct evidence
given on factum of adoption. When the trial Court has
done such exercise, the appellate court is expected to
keep in mind the scope in appeal of appreciation of such
direct evidence.
29) Let us see the evidence and the pleadings of
the present matter in the background of aforesaid position
of law. The suit was filed on 9-5-1979 by present plaintiff
for claiming relief of declaration of ownership and for that
he was expected to prove that he was adopted by Baliram
in the year 1950. In the pleadings, he had claimed that he
was aged about 14 years at the relevant time. In
substantive evidence he has stated that he was aged about
12 to 14 years at the relevant time but he remembers the
adoption ceremony.
30) In the pleadings no specific custom was
pleaded and there is vague contention that the
ceremonies necessary for adoption were performed as per
the custom of society in the presence of panchas and
respectable persons. First time in the evidence, the
plaintiff stated that in the ceremony of adoption he was
put on thigh (lap) of Baliram by Ramrao and then the
priest by name Prabhu Swami made the plaintiff to eat
sugar. He has deposed that pooja was performed by his
natural father, by Baliram, by defendant No.1 and the
plaintiff. He has deposed that this ceremony took place in
the house of Baliram in the evening time.
31) Neither in the pleading nor in the evidence the
day, date or month of adoption is given by the plaintiff.
Even the name of priest was not mentioned in the
pleadings. First time in the substantive evidence the
plaintiff took name of the priest and he took names of
some witnesses. The evidence as it is does not show that
there was declaration or utterance of any words by
Baliram showing that he had taken plaintiff in adoption
though plaintiff has deposed that he was put on the lap of
Baliram.
32) In the cross examination, plaintiff has stated
that talk about taking him in adoption by Baliram was
started from his childhood. He has given evidence that
many persons from his village and one person from other
village attended the adoption ceremony. He has deposed
that no document of adoption or even Yadi was prepared
and no invitation cards were printed to invite people for
attending the adoption ceremony. He has deposed that
age of Baliram at the relevant time was about 80 to 90
years and the age of Ramrao was around 70 to 75 years.
33) Triveni (PW 2) wife of Digamber, a brother of
the plaintiff, is examined as witness to adoption by the
plaintiff. It is already observed that her name is not
mentioned in the pleadings. Her name was not taken even
in substantive evidence by plaintiff. These circumstances
need to be kept in mind while appreciating evidence of
Triveni.
34) Triveni has deposed that she was given in
marriage to Digamber when she was aged 10 to 11 years
and the adoption took place after her marriage. Triveni
has deposed that adoption ceremony took place in the
house of Rambhgau (plaintiff has stated that the adoption
took place in the house of Baliram). When the plaintiff had
not given the names of other witnesses except the names
of witnesses like Prabhu Swami, this witness has given
names of many other witnesses by saying that they had
also attended the adoption ceremony.
35) Triveni has deposed that during adoption
ceremony Rambhau put the plaintiff on the thigh (lap) of
Baliram. She has deposed that Prabhu Swami, priest,
performed pooja and told that the plaintiff had become
son of Baliram. Thus, Triveni has also not given evidence
that there was declaration from Baliram that he had taken
plaintiff in adoption.
36) In the cross examination, Triveni has deposed
that invitation cards were printed for inviting people for
adoption ceremony. In the cross examination she has tried
to say that the persons only from their community, Jangam
community, had attended the ceremony but then she
contended that the ceremony was attended by persons of
other community also.
37) Triveni has given the age of Baliram as 60
years and she has stated that plaintiff was aged about 10
to 11 years at the relevant time. She has given evidence
that document of adoption was written by Prabhu Swami
and this document was handed over by Prabhu Swami to
Baliram. She has given evidence that adoption ceremony
took place in the morning time. Thus, there are
inconsistency in the evidence of Triveni and the plaintiff
on many points like the place of adoption, time of
adoption, printing of invitation cards and writing of
adoption document. These inconsistencies cannot be
called as minor inconsistencies.
38) The evidence of Triveni does not show that she
has knowledge about agricultural lands which were owned
by Baliram or even Rambhau. It appears that when
deposition of Triveni was recorded Digamber, her
husband, was not alive. However, other witnesses like
sister of the plaintiff was alive and that can be seen from
the evidence of the plaintiff and other witnesses. Said lady
was already married, she was elder to plaintiff and so she
could have been the better witness to prove adoption. The
evidence further shows that the husband of the said sister
of the plaintiff is alive and it is stated in evidence that said
husband had attended the adoption ceremony. No
explanation is given for non examination of these
witnesses. In any case names of Triveni or those witnesses
are not mentioned in the pleadings or in the substantive
evidence by the plaintiff.
39) Ramkishan (PW 3) is another witness examined
to prove the adoption. In the cross examination, he has
admitted that he is from Bhavaki, relative, of the plaintiff
and persons from his society and persons from other
community had attended the ceremony. The cross
examination shows that against brother of defendant No.3
(purchaser of suit land) he had a litigation and said suit
was decided in favour of the brother of the defendant
No.3. This circumstance shows that he has no good
relations with the defendants and so he is interested
witness. In view of this circumstance his evidence needs a
close scrutiny.
40) Ramkishan has given evidence that the
adoption took place in the house of Rambhau. He has
given evidence that during ceremony, Rambhau stated
that as he had two sons, he was giving plaintiff in
adoption. This witness has also not given substantive
evidence to the effect that Baliram had stated that he was
accepting plaintiff in adoption.
41) In the cross examination, Ramkishan has stated
that husband of the sister of the plaintiff had attended the
ceremony. He has given evidence that age of Baliram was
about 55 to 60 years at the relevant time. This evidence of
Ramkishan is not consistent with the evidence of the
plaintiff in respect of place of adoption, age of Baliram
and the persons who had attended the adoption ceremony.
This witness gave his age as 57 years when his deposition
was recorded in 1984 and so he had not crossed age of 30
years at the relevant time.
42) Trimbak Kale (PW 4) is examined as one more
witness to prove adoption. His evidence shows that he is
also relative of the plaintiff. He has given evidence that
during ceremony, Rambhau gave plaintiff in adoption to
Baliram. This witness has not stated anything about the
manner in which the giving and taking took place.
Ramkishan has also not stated anything about such
manner. Trimbak has also not uttered a word to say in
what manner Baliram declared that he had taken plaintiff
in adoption.
43) Trimbak (PW 4) has stated in the cross
examination that writing about the adoption was done and
it was signed by his father and other witnesses. He has
deposed that this document was written by Prabhu Swami
and it was handed over to Baliram. According to the
plaintiff no such document was brought in existence and
so on this point also the evidence of Trimbak is not
consistent with the evidence of the plaintiff. It appears
that only during re-examination he stated that the
document was handed over to Baliram. There is clear
possibility that such version was afterthought as there is
no such document with the plaintiff.
44) Prabhu Swami (PW 6), the priest, has given
evidence that he had performed pooja of adoption. He has
given evidence that oath was given to natural father to the
effect that the natural father had given plaintiff in
adoption to adoptive father. He has deposed that oath was
administered to the adoptive father to the effect that he
had taken plaintiff in adoption. It is already observed that
such particulars are not there in the pleadings. Such
particulars are not present in the substantive evidence of
the plaintiff. Such particulars are not there in the
evidence of other witnesses also.
45) Prabhu Swami has given evidence that adoption
ceremony took place in the house of Rambhau. In the
examination in chief itself Prabhu has stated that one chit
was written by him at the time of adoption ceremony in
respect of the adoption and he had handed over the chit to
Rambhau. This is altogether different version than the
version given by aforesaid two witnesses. The plaintiff is
not saying anything about such chit and if the chit was
handed over to Rambhau, the natural father of the
plaintiff, it was very much possible for the plaintiff to
produce and prove that chit. The evidence of the so called
priest shows that entry about this ceremony was not made
in the record of the community and he himself did not
maintain record of such ceremonies. Thus, there is
virtually no record but evidence is given on creation of
such record.
46) The evidence of Prabhu Swami shows that he is
educated person. When he is educated, he could have
given day, date or month of the ceremony. He has given
evidence that 50 persons had attended the ceremony
when other witnesses have stated that about 20 to 25
persons attended the ceremony. Thus, the evidence of this
witness also is not consistent with the evidence of the
plaintiff and other witnesses. There is no circumstantial
check like the document of adoption or Yadi of adoption.
When the widow of Baliram has denied that there was
such adoption, burden was heavy on the plaintiff to prove
the factum of adoption. As there is no circumstantial
check like quoted above and the so called direct evidence
is not consistent and convincing, the trial Court had
refused to believe the plaintiff and his witnesses. Here
only it needs to be kept in mind that defendant No.2 –
Champabai is the first wife of plaintiff but she has stated
on oath that as per her information there was no adoption.
She is not only the wife of the plaintiff but she is a
daughter of sister of defendant No.1. Her evidence shows
that she came in picture when she was given in the
marriage to the plaintiff and as she was resident of
Wadgaon in the past, she had no personal knowledge.
However, she has given evidence that her marriage with
the plaintiff took place in the house of Rambhau, the
natural father of the plaintiff. She has given specific
evidence that at the time of marriage, plaintiff was living
with Rambhau and Baliram was not alive. In the
pleadings, the plaintiff has specifically contended that
within six months from the so called date of adoption
Baliram died. It was not his case that Baliram had
solemnized his marriage with defendant No.2 though he
has tried to give such substantive evidence. These
circumstances are important as the subsequent events
show that defendant No.1 had attachment towards
defendant No.2 and so she gifted the suit lands to
defendant No.2. Only after the marriage, the plaintiff was
in possession but to cultivate the suit lands. Learned
counsel for the plaintiff argued much on the basis of so
called admissions given by defendant No.2 in her
evidence. She has admitted that she had lived in the house
of defendant No.1 along with plaintiff and second wife of
the plaintiff. Not much weight can be given to this
admission as defendant No.1 was widow, she had no
support of any male member and there is record to show
that she preferred to gift the property to defendant No.2.
There are more circumstances to show that even
defendant No.1 never treated the plaintiff as her son.
47) If the surrounding circumstances are
considered, from the pleadings it can be said that Baliram
had no occasion like marriage or other functions to show
to the world that he had adopted the plaintiff. Though
plaintiff married two times, there is no record of marriage
to show that defendant No.1 had acted as his mother in
the marriage and the plaintiff had given name of Baliram
as his father. In the plaint, many properties of Baliram
(three agricultural lands) are not mentioned and the
transactions of sale made by defendant No.1 in respect of
these lands are not challenged. Absence of mention of
these lands in the plaint create all probabilities like
ignorance of plaintiff about such properties of Baliram
and his belief that he was not entitled to challenge the
transactions as the properties belonged to defendant
No.1.
48) It is not disputed that all the agricultural lands
of Baliram were mutated in the name of defendant No.1
after the death of Baliram. If Baliram had died prior to
1956, in ordinary course the properties would have been
entered in the name of the plaintiff if he was really
adopted by Baliram. This did not happen. It needs to be
kept in mind that one house property is shown to be
entered in the name of plaintiff but that assessment
record is of the year 1982-83 created after starting of the
litigation. It is not disputed that the defendant Nos.1 and
2 were living in this house before they left for Chousala.
The defendants have specifically contended that only due
to harassment of plaintiff and his brother, they were
required to leave Ghargaon and then plaintiff got the
possession of the house and got entered his name in the
assessment record of the house. Defendant No.1 was lady
aged about 75 years and she was widow. Defendant No.2
was deserted by plaintiff and then her two daughters were
given in marriage by her. The evidence on the record
shows that they had no support in village Ghargaon. In
view of these circumstances, not much can be made out
from the circumstance that in the assessment record of
the year 1982-83 of the suit house after filing of suit, the
name of the plaintiff was shown as occupant. Such record
cannot confer title on the plaintiff.
49) At Exhibits 10 and 11 there are pahani patrak
of Survey Nos.84/3, 92/3. This record shows that name of
Yamunabai, defendant No.1, widow of Baliram, was
entered as owner of these lands from prior to 1955. This
record is for 1955 to 1958. Exhibit 10 shows that name of
Chandrabhan (plaintiff) was entered in pahani patrak of
land Survey No.84/3 as the person in occupation,
cultivating the land. However, this entry also does not
show that the plaintiff had given the name of his father as
Baliram. Only name of "Chandrabhan" is mentioned in
Exhibit 10. On the other hand, in Exhibit 11, Pahani
Patrak of other suit land, name of plaintiff was entered in
cultivation column as "Chandrabhan Rambhau". Thus in
the year 1955 the plaintiff used name of Rambhau as his
father and he was not using name of Baliram. It is clear
that in 1955 Baliram was not alive and the plaintiff could
get opportunity for entering the name in cultivation
column as he has married with defendant No.2. The 7/12
extracts of these agricultural lands, suit lands, show that
from 1959-60 onwards name of Yamunabai, defendant
no.1, was entered even in crop cultivation column. Thus,
name of the plaintiff was deleted from crop cultivation
column from the year 1959 and it shows that he must have
left village Ghargaon in that year.
50) There is pahani patrak in respect of land
Survey No.86 for the years 1955-59 and it shows that
name of "Chandrabhan" was entered in occupation
column. In this document also name of his father was not
mentioned. In pahani patrak of land Survey No.100 name
of Yamunabai only was entered for the years 1955-59
both as owner and person in possession (Exhibits 43 and
44). The 7/12 extract in respect of these three lands for
the year 1959-60 onwards show that the name of the
plaintiff came to be deleted from record and the name of
Yamunabai only was entered both as owner and person in
possession. In the record of Survey No.109 name of
Yamunabai only was entered in both ownership and
cultivation column. Name of the plaintiff was not entered
even in cultivation column of Survey Nos.100 and 109.
51) The pleadings of the plaintiff and the aforesaid
record show that after the death of Baliram mutation was
effected and the name of Yamunabai only was entered as
successor of Baliram in the record of rights. The plaintiff
admittedly did not take steps to enter his name as
successor even when according to him, he had the right to
do so. It needs to be kept in mind that Baliram died prior
to 1956 and so in ordinary course name of the plaintiff
only could have been entered in the revenue record as
successor of Baliram if he was really taken in adoption by
Baliram. The entry of name of the plaintiff in crop
cultivation column of few lands cannot help him in any
way. The entry was not made as successor of Baliram and
he did not give name of his father as Baliram but in one
record his name was given as Chandrabhan Rambhau.
52) The aforesaid record is not consistent with the
case of the plaintiff on adoption. The oral evidence on the
record and the aforesaid revenue record create only one
probability that as plaintiff had lived with defendant Nos.1
and 2 in the house of defendant No.1, his name was
entered in the crop cultivation column of the few lands.
There is clear probability that he was allowed to cultivate
the lands as there was no male member in family of
defendant No.1 to look after the lands and as defendant
No.1 wanted to give the properties to defendant No.2 and
as plaintiff was husband of defendant No.2.
53) It is not disputed that defendant No.1 had
executed document of gift in favour of defendant No.2.
Copy of mutation No.114 produced at Exhibit 75 shows
that in the year 1972 defendant No.1 executed such
document, she produced the document before the revenue
authority and she requested to enter name of defendant
No.2 as owner of the two suit lands. The wording used in
the report given by the defendant No.2 to the revenue
authorities is important and it shows that defendant No.1
had informed to the revenue authority that defendant
No.2 was daughter-in-law of brother of her husband
(p qyr l wu). Admittedly, the aforesaid mutations were
never challenged by the plaintiff.
54) It is not disputed that defendant No.1 had sold
survey No.86/1 under sale deed dated 10-2-1966. Copy of
mutation is at Exhibit 45 and it was sanctioned on 8-12-
1967. This sale transaction made by defendant No.1 is not
challenged by the plaintiff though he had contended that
defendant No.1 had no right to sell the suit property.
Similarly, defendant No.1 had sold Survey Nos.100/3 and
109/3 under sale deed dated 24-7-1972 to one Mukunda.
At Exhibit 46 there is copy of Mutation No.122 sanctioned
in the year 1973. This transaction is also not challenged
by the plaintiff. Conduct of the plaintiff of not challenging
the mutations and also the sale transactions in respect of
aforesaid three agricultural lands goes long way against
the plaintiff. This conduct creates probability that there
was no adoption. Though plaintiff had tried to contend
that he got knowledge in the year 1979, this contention is
not acceptable. The revenue record like pahani patrak
shows that the aforesaid lands were parts of the old land
survey numbers which were owned by Baliram and
Rambhau together. Thus, the lands of Rambhau were
adjacent to the aforesaid three lands and so it can be said
that Rambhau or Digamber and then the plaintiff had no
knowledge about the aforesaid mutations and sale of the
three lands to third parties by defendant No.1. This
voluminous record is ignored by first appellate Court.
This record is consistent with the case of the defendants
and it is not consistent with the case of the plaintiff.
55) From the aforesaid record and circumstances it
can be said that in or about the year 1959 the plaintiff
shifted to Wadgaon with his second wife. He did not
produce record even of second marriage. He did not
examine witness like relatives of his second wife who
could have given evidence about the part played by
defendant No.1 in this marriage. On the other hand, the
defendants have produced some record to show that
plaintiff was using name of Rambhau as his father. The
defendants have examined one Narsing Kulkarni (DW 2)
to prove the record of ration card of the plaintiff obtained
in village Wadgaon. The record and the evidence of this
witness show that for getting ration card in the year 1976
the plaintiff had given his name as "Chandrabhan
Rambhau". There is no reason to disbelieve this record
and this record is not consistent with the case of the
plaintiff. The first appellate Court has not considered this
evidence.
56) Witness Kashinath Thalkari (DW 3) who is
resident of Wadgaon and witness Ganpat Kharbad (DW 5)
who is also resident of Wadgaon are examined by
defendants to show that the plaintiff has been using the
name of Rambhau as his father. The evidence of these
witnesses shows that plaintiff was living in the house of
one Balikram Master as tenant with his wife Shivganga,
second wife. In view of the aforesaid circumstances and
the other record there is no reason to disbelieve these
two witnesses.
57) Mahadeo (DW 4), Gram Sevak of village Yusuf
Wadgaon is examined by the defendants to prove the
record of birth of daughter from second wife of the
plaintiff. The oral evidence and the record show that on
31-12-1959 the plaintiff had reported to the local body by
giving his name as Chandrabhan Rambhau that a
daughter was born to him. Exhibit 112, entry made in the
births and deaths register is very old entry and there is no
reason to doubt this entry.
58) Jaiwant Jogdand, Gram Sevak of village SoniSanghvi
is examined by defendants to prove some record.
The evidence of this witness and the record of the village
panchayat at Exhibit 125 (register of cattle pond) show
that on 26-6-1966 Chandrabhan Rambhau Kale, r/o
Ghargaon, at present resident of Yusuf Wadgaon had
handed over stray cattle to the cattle pond of the village
panchayat. This witness was acting as gram Sevak since
1962. In the Court, the witness identified the plaintiff as a
person who had handed over the cattle along with
application. In the cross examination, nothing is brought
on record to create probability that this record is not
correct, it is false. There was virtually no reason for this
witness to give false evidence against the plaintiff.
59) Witness Gangadhar Lamture (DW 7) was
Sarpanch of village Wadgaon for about 5 years from the
year 1964 onwards. He has given evidence that the
plaintiff was living in village Wadgaon for 20 to 25 years.
In the record of the village, his name was recorded as
Chandrabhan Rambhau Kale. There is no reason to
disbelieve this witness also in view of the record available.
Copy of voters list is produced at Exhibit 131 for the year
1975. The voters list is for the village Wadgaon and it
shows that in House No.258-3, Shivganga, second wife of
the plaintiff was living along with her husband Kale
Chandrabhan Narayan. There is clear probability that
name of father as Narayan was either given by mistake or
it was given intentionally by the plaintiff. There is no
evidence to show that there is another person having the
said name and he has wife by name Shivganga. This
record also needs to be used against the plaintiff. Thus,
as per the record in village Wadgaon (Yusuf) the plaintiff
was always using the name of his natural father Rambhau.
60) The plaintiff has relied on the record of one
cooperative credit society of village Ghargaon. Witness
Bansi Hazare (PW 7) is examined to prove this record.
Evidence is given that in the year 1961 the plaintiff had
obtained crop loan by giving his name as Chandrabhan
Baliram Kale. The evidence is given in the year 1984.
Defendant No.1 had deposited the amount for repayment
of the loan. It is already observed that for some time
plaintiff was living with defendant Nos.1 and 2. Even two
daughters were born to defendant No.2 from plaintiff. It
is already observed that the plaintiff was cultivating the
lands of the defendant No.1 and he had managed to enter
his name in the crop cultivation column of at least three
lands. However, the Credit Society could not have given
loan in the name of the plaintiff as he was not the owner
of the lands. These things are fishy. It is already observed
that on the basis of such circumstances inference is not
possible that there was adoption. No record of loan of
that transaction is produced. Such record could have
helped to show as to whether the defendant No.1 was
party to the transaction and she had allowed the plaintiff
to use the name of Baliram as his father. There was no
alternative for the defendant No.1 than to make payment
of the loan as plaintiff was husband of defendant No.2 and
he was cultivating the lands during his stay in the house
of defendant No.1. Further, there is record to show that in
the year 1959 the plaintiff had shifted to Wadgaon and his
name was not entered even in crop cultivation column
after that year. Due to these circumstances, no wight can
be given to the evidence of Bansi and some receipts of
payment of loan in the name of Chandrabhan Baliram.
61) The plaintiff has relied on copy of voters list of
village Ghargaon. It was of the year 1971. This record
shows that in House No.139 following voters were living :-
(i) Kale Yamunabai Baliram;
(ii) Kale Chandrabhan Baliram;
(iii) Kale Champabai Chandrabhan;
(v) Kale Rakhminbai Chandrabhan.
It is already observed that Shivganga was the name of
second wife of the plaintiff and not Rakhminbai. Name of
Shivganga was in the voters list from Wadgaon also.
There is clear probability that in the voters lists of both
places name of plaintiff was entered. It is noticed that
names of many voters are entered in the voters list of
many constituencies and that is done by the persons
interested in contesting election or by their workers. The
plaintiff was not living in Ghargaon in the year 1971. So,
not much importance can be given to the voters list of
that year of village Ghargaon.
62) Some assessment receipts in respect of house
property from village Ghargaon are produced showing
that the assessment was paid in the name of plaintiff from
the year 1975-76. The aforesaid record like voters list of
Wadgaon and the circumstances show that in that year the
plaintiff was probably living in Wadgaon. These receipts
of assessment cannot help the plaintiff in any way. It is
already observed that the plaintiff had created some such
record.
63) For proving the surrounding circumstances
also, the burden was on the plaintiff. It was up to him to
show that he was being treated as son by Baliram and by
defendant No.1 and was not treated as son of Rambhau.
Record on the contrary shows that he was using the name
of Rambhau as his father. When there is voluminous
record including revenue record to show that the plaintiff
was using the name of Rambhau as his father and he
never challenged the transactions made by defendant
No.1, few pieces of circumstances mentioned above
cannot help the plaintiff and on the basis of such
circumstances inference is not possible that the plaintiff
was taken in adoption by Baliram.
64) It is already observed that probably in or about
year 1959 plaintiff started living separately from
defendant No.2. The evidence on the record and the
circumstances show that there was cohabitation for 6 to 7
years and two daughters were born to defendant No.2
from the plaintiff. He did not participate in the marriages
of two daughters. Though defendant No.2 has given
evidence that there was cohabitation for 20 to 25 years,
such admission cannot help the plaintiff when plaintiff
himself has contrary contentions. Evidence on record
shows that plaintiff had not taken care of either defendant
No.1 or defendant No.2 after 1959. There is clear
probability that defendant No.1 had attachment towards
defendant No.2 and due to that she had allowed defendant
No.2 and plaintiff to live with her and she had allowed
plaintiff to cultivate the lands for few years. It is clear that
after second marriage, plaintiff left house of defendant
No.1, and he shifted to Wadgaon. There is some evidence
given through Triveni to show that the properties of
Rambhau were not succeeded by plaintiff. But no record
in that regard is produced. Such circumstances could
have been proved only by producing some record and the
oral evidence, even the admission of other side cannot
help the plaintiff in that regard.
65) All the aforesaid circumstances and the record
were considered by the trial Court. Due to the
circumstances the trial Court had refused to believe the
plaintiff and his witnesses. The reasoning given by the
first appellate Court, which is already quoted, shows that
the first appellate Court has committed serious error in
interfering in the decision of the trial Court. Such decision
cannot sustain in law.
66) The learned counsel for the plaintiff placed
reliance on a case reported as AIR 2005 SC 1020
(Christopher Barla v. Basudev Naik) and submitted that
interference in second appeal is not possible when the
finding is a finding of fact. This Court has already quoted
the material and the circumstances which are relevant
and which were not considered by the first appellate
Court. The finding of the first appellate Court is perverse
and interference is warranted. The first appellate Court
has not given due weight to the finding given by the trial
Court which was based on oral evidence and the
surrounding circumstances.
67) The learned counsel for the plaintiff placed
reliance on one more case reported as AIR 2002 SC 2416
(Raushan Devi v. Ramji Sah). The facts of this reported
case show that there was deed of adoption and the
adoptive father had supported the case of the adoption of
the son. These facts were different. The facts and
circumstances of each and every case are always different
and the Court is expected to decide the matter on the
basis of the facts and circumstances of a particular case.
68) The learned counsel for the plaintiff placed
reliance on the cases reported as (1) AIR 1972 Bombay
164 (Sadashiv Shankar Wani v. Bala Nisbat Babaji Wani);
(2) 1943 BLR 992 (Tirkangauda M. Kashigaudar v.
Shivappa Patil) and (3) A.I.R. (32) 1955 Nagpur 60
(Maroti Bansi Teli v. Radhabai Tukaram Kunbi). Learned
counsel for the plaintiff submitted that parties belong to
Wani Jangam community and they are treated as Sudra
under Hindu law. He submitted that no religious
ceremonies are required for Sudra for adoption. He
submitted that mere giving and taking are enough. There
is no dispute about the proposition and this proposition is
already considered by this Court.
69) The learned counsel for the plaintiff placed
reliance on a case reported as AIR 2003 SC 4319
(Rajgopal v. Kishan Gopal). Facts of this reported case
show that there was dispute over the form of adoption and
there was no dispute about factum of adoption. In view of
the circumstances of that case, it was held that the finding
given by the Courts below was finding of fact and so it
was held that no interference was possible in the second
appeal. There cannot be dispute over the proposition
made in this reported case also.
70) In view of the discussion made above, this
Court holds that the judgment and decree of the first
appellate Court needs to be set aside by answering all the
substantial questions of law against the plaintiff. In the
result, the substantial questions of law are answered
accordingly.
71) The appeal is allowed. The judgment and
decree of the first appellate Court is hereby set aside and
the judgment and decree of the trial Court is hereby
restored.
(T.V. NALAWADE, J. )
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plaintiff submitted that to ascertain as to whether the
witnesses to adoption are trustworthy, surrounding
circumstances also need to be considered. On this point
he placed reliance on the case reported as AIR 1968
Mysore 309 (Govinda v. Chimabai). The High Court
referred a case of the Supreme Court reported as AIR
1965 SC 354 (Ramchandra v. Champabai) for discussing
the importance of surrounding circumstances for
ascertaining the trustworthiness of witnesses. The
observations are at paragraph 20 of the case of the
Mysore High Court and they are as under :-
“20. ….. “In order to judge the credibility of the witnesses,
the Court is not confined only to the way in which the
witnesses have deposed or to the demeanour of witnesses,
but it is open to it to look into the surrounding
circumstances as well as the probabilities, so that it may
be able to form a correct idea of the trustworthy of the
witnesses. The issue … cannot be determined by
considering the evidence adduced in the court separately
from the surrounding circumstances which have also been
brought out in the evidence, or which appear from the
nature and contents of the document itself … “
BENCH AT AURANGABAD
Second Appeal No. 45 of 1995
Saraswati w/o Keshav Mandve,
V
Chandrabhan s/o Baliram Kale,
CORAM: T.V. NALAWADE, J.
DATE : 11th JANUARY 2016
Citation: 2016 (6) MHLJ 668
1) The appeal is filed against the judgment and
decree of Regular Civil Appeal No.351 of 1984 which was
pending in the District Court Beed. The District Court,
first appellate Court, has set aside the judgment and
decree of trial Court, the Civil Judge, Junior Division,
Beed. Present respondent, plaintiff, had prayed for relief
of declaration in respect of immovable properties and the
sale transactions and such decree is given by the first
appellate Court. Both the sides are heard.
2) Survey No.84 admeasuring 2 acres 15 gunthas
and survey No.92 admeasuring 1 acre 35 gunthas situated
at village Ghargaon, Tahsil and District Beed are the suit
lands. One house property situated in village Ghargaon is
also suit property. Its number is not given but the
boundaries of the property are given.
3) One Rambhau was natural father of the plaintiff
Chandrabhan. Baliram was real brother of Rambhau and
they were residents of Ghargaon. Defendant No.1
Yamunabai is widow of Baliram and defendant No.2
Champabai is a daughter of sister of Yamunabai.
Defendant No.2 is the wife of plaintiff Chandrabhan.
During pendency of the suit Yamunabai died.
4) It is the case of the plaintiff that Baliram had no
issue and Rambhau had two sons and daughters. It is
contended that right from beginning Baliram had treated
the plaintiff as his son and ultimately he adopted the
plaintiff in the year 1950. It is contended that plaintiff was
aged about 14 years at the relevant time. It is contended
that the plaintiff was adopted in the presence of panchas
and respectable persons and adoption ceremonies were
performed as per custom of society of the plaintiff. It is
contended that parties are Sudras as per Hindu law.
5) It is the case of the plaintiff that after the
adoption, he lived with Baliram and defendant No.1 in the
house of Baliram and he was treated as son by them. It is
contended that after six months of the adoption, in the
year 1951, Baliram died. It is the case of the plaintiff that
the suit properties were owned by Baliram and since the
death of Baliram the plaintiff has been in possession of the
suit properties.
6) It is the case of the plaintiff that the income of
the aforesaid properties was not sufficient for the
livelihood and so he shifted to village Wadgaon, Tahsil
Kaij, District Beed. It is contended that he did labour work
there and he maintained defendant Nos.1 and 2.
7) It is the case of the plaintiff that defendant
No.1 in collusion with Talathi of the village entered her
name in 7/12 extract of the suit properties behind his
back. It is his case that defendant No.1 executed gift deed
in favour of defendant No.2 Champabai and then name of
Champabai was also entered in the revenue record. It is
contended that the suit house was however entered in the
name of the plaintiff. It is contended that aforesaid entries
in the record of agricultural lands were made behind his
back and so they are not binding on him. It is contended
that cause of action took place when he learnt about such
entries on 1-4-1979 and when he received information
that defendant No.1 and 2 were trying to dispose of the
suit properties.
8) The suit was filed on 9-5-1979. During
pendency of the suit, on 28-5-1979, the suit lands were
sold by defendant Nos.1 and 2 in favour of defendant
Nos.3 to 6 and amendment was carried out in the plaint
on 15-7-1982 and this circumstance was mentioned and
plaintiff then claimed relief of declaration that sale deeds
are not binding on him.
9) Defendant Nos.1 and 2 filed joint written
statement. They denied that plaintiff was adopted by
Baliram. They denied that during life time of Baliram,
plaintiff had lived in the house of Baliram with Baliram
and Baliram was treating plaintiff as his son. They
however admitted that plaintiff is son of Ramrao and
Ramrao was brother of Baliram.
10) It is the case of defendant No.1 and 2 that the
suit properties and other agricultural lands like Survey
Nos.86/1, 100/3 and 109/2 situated at Ghargaon were also
owned by Baliram. It is contended that, these lands were
sold by defendant No.1 long back, as she was the owner of
these lands.
11) It is the case of the defendants that plaintiff
lived in Wadgaon since many years. They have contended
that plaintiff never maintained them. It is contended that,
since many years defendant No.2 is deserted by plaintiff
and defendant No.2 maintained defendant No.1. It is the
case of the defendant Nos.1 and 2 that due to harassment
of plaintiff and his brother, they left Ghargaon and they
shifted to Chausala and after that plaintiff managed to get
possession of the aforesaid house property.
12) It is the case of the defendant Nos.1 and 2 that
after the death of Baliram, suit properties and other
properties were entered in the name of defendant No.1 as
she is only successor of Baliram. It is their case that from
the years 1955 to 1958 plaintiff had some how managed to
enter his name in the crop cultivation column of the suit
lands. It is contended that during those days defendant
No.2 was living with plaintiff. It is contended that in the
year 1959-60 correction was made in the revenue record,
name of the plaintiff was removed and from the year
1961 onwards, the name of defendant No.1 was entered
both in ownership and cultivation columns.
13) It is the case of the defendant Nos.1 and 2 that
on 14-7-1972 defendant No.1 gifted the suit lands to
defendant No.2 and accordingly entries in revenue record
were made in favour of defendant No.2. It is contended
that from the date of gift, defendant No.2 cultivated the
suit lands. They have denied that the plaintiff had no
knowledge about the aforesaid mutations and the
transactions.
14) It is the case of the defendants that defendant
No.1 had succeeded to the properties of Baliram and so
she sold Survey No.86/1 to one Housrao Tulsiram Dhas
under sale deed dated 2-2-1966. She sold Survey
Nos.100/3 and 109/2 under sale deed on 9-9-1971 to one
Mukund Bhanudas Dhas. It is contended that under these
sale deeds possession was given of these lands to the
purchasers and those lands are still with the purchasers.
It is contended that, the circumstance that the plaintiff
has not challenged these sale deeds shows that he was
never adopted by Baliram. It is contended that the suit
lands were also sold under registered sale deeds to
defendant Nos.3 to 6 and the possession is handed over by
defendant Nos.1 and 2 to these defendants. It is
contended by defendant Nos.1 and 2 that the case of the
plaintiff that he is in possession of suit property is false.
15) Written Statement was filed by other
defendants also and their contentions are similar to the
contentions made by defendant Nos.1 and 2.
16) Issues were framed by the trial Court on the
basis of aforesaid pleadings. Both sides gave evidence.
The case of the plaintiff rests mainly on the contention of
his adoption by Baliram in the year 1950. If he fails to
prove the adoption, he cannot get any relief. The trial
Court had held that plaintiff failed to prove his adoption
by Baliram. The trial Court had refused to believe the
witnesses examined by the plaintiff who have given direct
evidence on adoption. No document of adoption was
created as per the case of the plaintiff and even the names
of witnesses were not mentioned in the pleadings by the
plaintiff. The trial Court considered the direct evidence
and also the surrounding circumstances while giving
decision. The first appellate Court has held that the
inconsistencies appearing in the evidence of the witnesses
to adoption are minor and they can be ignored as the
evidence was given after many years of the adoption. The
first appellate Court has placed reliance on some
observations made by the Orissa High Court in a reported
case.
17) This Court, other Hon'ble Judge, admitted the
present appeal by observing that substantial questions of
law can be formulated on the grounds mentioned in
appeal memo as Ground Nos. K, P, Q, R and S. No specific
questions were formulated. The substantial questions of
law can be formulated on the basis of those grounds as
under :-
(I) Whether the first appellate Court has committed
error in not considering the circumstance that other
transactions of sale made by the defendant No.1 in
respect of three agricultural lands like Survey
Nos.86/1, 100/3 and 109/2 which were left behind by
Baliram are not challenged by the plaintiff in the suit ?
(II) Whether the first appellate Court has committed
error in not considering the circumstance that after
the death of Baliram name of defendant No.1 only was
mutated in the revenue record as successor of
Baliram and the name of the plaintiff was not entered
as successor of Baliram ?
(III) Whether the first appellate Court has committed
error in not considering the circumstance that the
cooperative credit society could not have given loan
to the plaintiff on the lands left behind by Baliram as
plaintiff was not shown as owner in the revenue
record and further there is the circumstance that it is
defendant No.1 who had repaid the loan ?
(IV) Whether the first appellate Court has committed
error in not giving due weight to the circumstance
like plaintiff never used name of Baliram as his father
anywhere and he continued to use the name of his
natural father Rambhau ?
This Court allowed both the sides to argue on following
substantial question of law also :-
(V) Whether due to absence of specific pleadings
with regard to particulars of adoption and due to
inconsistencies in the evidence of the witnesses it can
be said that there is sufficient evidence to prove the
factum of adoption ?
18) Before considering the evidence given by both
the sides, it is necessary to quote the position of law. The
first appellate Court has relied on some observations
made by Orissa High Court in the case reported as AIR
1976 Orissa 43 (Gouranga Sahu v. Bhaga Sahu). The
observations used are as under :
"Hindu Law Adoption Burden of proof Mode of
appreciation of evidence adoption 36 years old variety of
transactions of open life and conduct on footing that
adoption was valid taking place. Burden rests on him, who
challenges validity of adoption."
19) In the present case there is specific contention
that plaintiff's adoption took place in the year 1950.
Plaintiff has deposed that he remembers the factum of
adoption and there are witnesses available in whose
presence the adoption took place including the priest. In
view of these circumstances, it cannot be said that
adoption was ancient, no direct evidence is available on
adoption and the inconsistencies can be ignored. Other
part of the reasoning given by the first appellate Court is
being discussed at appropriate place.
20) In the cases reported as (1) AIR 1983 SC 114
(Madhusudan Das v. Narayani Bai); (2) A.I.R. (32) 1945
Nagpur 60 (Maroti Bansi Teli v. Radhabai); and, (3) AIR
1970 SC 1286 (L. Debi Prasad v. Tribeni Devi) Shatrik
Hindu Law is discussed. In these cases it is made clear
that for proving the adoption, giving and taking are
absolutely necessary. Giving and taking is operative part
of the ceremony of adoption and so physical act of giving
and taking must be proved even if there is a deed of
adoption. In these cases, it is laid down that the evidence
on giving and taking must be free from suspicion of fraud.
It is made clear in aforesaid cases that no particular form
of adoption is required but for proving factum of adoption,
it needs to be proved that natural father was asked by
adoptive parents to give his son in adoption and then the
natural father had handed over the son and the adoptive
parents took the boy for adoption. These cases show that
the requisites of giving and taking need to be fulfilled
even in case of Sudra.
21) In the case reported as AIR 1930 PC 79 (Dal
Bahadur Singh v. Bijai Bahadur Singh) it has been made
clear that adoption must be beyond suspicion and of
unimpeachable character. It is laid down that proof should
be strict and severe. This decision is reiterated in many
cases by various High Courts including Bombay High
Court and the Supreme Court in the cases like AIR 1983
SC 114 (cited supra) and 1977 Mh. L.J. 68 (Laxman
Ganpati Khot v. Anusuyabai) (Bombay High Court). In
these cases provision of section 101 of the Evidence Act is
referred and provision of section 3 of the Evidence Act for
the purpose of definition of proof is also referred. It can
be said that in view of provision of section 60 of the
Evidence Act, direct evidence on adoption must be given
when it is available. This Court in the case of Laxman
(cited supra) has referred two more cases of Privy Council
like (1) AIR 1931 PC 84 (Padmalav v. Fakira Debya); and,
(2) AIR 1949 PC 18 (Muthuswami v. Chidambara).
Specific observations can be found at para 4 of this Court
(supra) and they are as follows :-
"4. Three questions really arise in this appeal and have
been argued before us, and they are, (1) whether, in view
of the provisions of sections 4 and 10(iv) read with section
3(a) of the Hindu Adoptions and Maintenance Act, 1956, it
is open to the first defendant to prove that there was a
custom or usage applicable to the parties which permitted
persons who were over the age of 15 to be taken in
adoption; (2) whether any such custom or usage has been
proved in the present case; and (3) whether the first
defendant has succeeded in proving the factum of the
adoption on which he relies. In the view which I take on
the third question relating to the factum of the adoption, it
is not really necessary for me to decide the first two
questions, but I will briefly indicate at the end of this
judgment my views in regard to the same. I will, therefore,
proceed to consider the evidence, oral as well as
documentary, which has been led in the trial Court to prove
the factum of the alleged adoption of the first defendant by
the deceased Anna on the 25th of January 1959. There can
be no doubt that the onus of proving the factum of the
adoption is on the first defendant who relies on it, but
before I proceed to discuss the evidence relating to the
same, I would prefer to refer to three decisions of the Privy
Council in regard to the extent of that onus. In the case of
Dal Bahadur v. Bijay Bahadur the question was really one
of proving whether or not authority had been conferred
upon the widow to adopt. In dealing with the question of
the extent of onus, Lord Buckmaster laid down the legal
position in the following terms (at page 81, Cols.1-2):--
"Their Lordships’ Board think it would be impossible to rely
on this piece of evidence and this piece of evidence alone for
the purpose of satisfying the very grave and serious onus that
rests upon any person who seeks to displace the natural
succession of property by the act of an adoption. In such a
case the proof requires strict and almost severe scrutiny, and
the longer the time goes back from the date when the power
was given to the time when it comes to be examined, the
more necessary it is, having regard to the fallibility of human
memory and the uncertainty of evidence given after the lapse
of such time, to see that the evidence is sufficient and
strong."
As the Privy Council was unable to find that the evidence
before them was sufficient for that purpose, they allowed
the appeal and restored the decree of the subordinate
Judge holding that the adoption was not proved. In the
case of Padmalav v. Fakira Debya, following earlier
decisions of its own, the Privy Council took the view (at
page 87, Col.1) that proof of the adoption must be free
from all suspicion of fraud and so consistent and probable
as to leave no occasion for doubt of its truth, and the
evidence in support of the same should be of
"unimpeachable character." In that connection, their
Lordships further observed (page 88, Col.1) that even an
admission made by the plaintiff during her widowhood
while she was entirely in the power of her husband's
relations, would necessarily carry much less weight that, if
made at an earlier period. Dealing then with a clause in
the compromise arrived at between the parties under
which the widow completely renounced her claim to
succeed to her husband's estate, their Lordships of the
Privy Council stated (at pages 88-89) that the same, far
from dispersing the clouds of suspicion raising upon both
the adoptions in question was calculated to darken them,
and concluded their judgment by stating that both the
adoptions in question before them were most improbable
in themselves and were "not supported by the
contemporaneous evidence which ought to have been
forthcoming." The Privy Council, therefore, confirmed the
judgment of the High Court holding that the adoptions
were not proved. In the case of Muthuswami v.
Chidambara where also the question of the factum of the
adoption was in dispute, though there was an alleged
adoption deed on which reliance was placed in support of
that adoption, the Privy Council held that the adoption to
be not proved observing as follows :-
"All the witnesses seem to have been friends or relations of
the parties and there is no corroboration of their testimony
such as is often found in cases of disputed adoption. No priest
or local official who might be regarded as disinterested was
called; no cards of invitation to the ceremony were produced,
and there was no photograph of the ceremony. The direct
evidence in support of the ceremony was therefore weak ...."
From these judgments of the highest Court, it is, therefore,
clear that since adoption displaces the normal order of
succession, Courts, must insist upon strict and even severe
standards of proof, and the evidence by which the adoption
is sought to be proved must be beyond suspicion and of
unimpeachable character."
22) The learned counsel for the respondent,
plaintiff submitted that to ascertain as to whether the
witnesses to adoption are trustworthy, surrounding
circumstances also need to be considered. On this point
he placed reliance on the case reported as AIR 1968
Mysore 309 (Govinda v. Chimabai). The High Court
referred a case of the Supreme Court reported as AIR
1965 SC 354 (Ramchandra v. Champabai) for discussing
the importance of surrounding circumstances for
ascertaining the trustworthiness of witnesses. The
observations are at paragraph 20 of the case of the
Mysore High Court and they are as under :-
“20. ….. “In order to judge the credibility of the witnesses,
the Court is not confined only to the way in which the
witnesses have deposed or to the demeanour of witnesses,
but it is open to it to look into the surrounding
circumstances as well as the probabilities, so that it may
be able to form a correct idea of the trustworthy of the
witnesses. The issue … cannot be determined by
considering the evidence adduced in the court separately
from the surrounding circumstances which have also been
brought out in the evidence, or which appear from the
nature and contents of the document itself … “
23) The learned counsel for the respondent placed
reliance on another case reported as AIR 1970 SC 1286 (L
Debi Prasad v. Tribeni Devi). He submitted that even
when there is no direct evidence of adoption, on the basis
of surrounding circumstances, Court can draw inference
about the adoption. This Court has already observed that
fact of adoption can be proved as mentioned in section 3
of the Evidence Act like “any other fact”. But when direct
evidence is available, in view of provision of section 60 of
the Evidence Act, such evidence must be given. In the
reported case (cited supra) observations with regard to
dispensing with the direct evidence are made by the Apex
Court at para 10 and the observations are as follows :-
“10. In the case of all ancient transactions, it is but
natural that positive oral evidence will be lacking. Passage
of time gradually wipes out such evidence. Human affairs
often have to be judged on the basis of probabilities.
Rendering of justice will become impossible if a particular
mode of proof is insisted upon under all circumstances. In
judging whether an adoption pleaded has been
satisfactorily proved or not, we have to bear in mind the
lapse of time between the date of the alleged adoption and
the date on which the concerned party is required to
adduce proof. In the case of an adoption said to have
taken place years before the same is questioned, the most
important evidence is likely to be that the alleged adoptive
father held out the person claiming to have been adopted
as his son; the latter treated the former as his father and
their relations and friends treated them as father and son.
There is no predetermined way of proving any fact. A fact
is said to have been proved where after considering the
matters before it, the Court either believes it to exist or
considers its existence so probable that a prudent man
ought, under the circumstances of the particular case, to
act upon the supposition that it exists. Hence if after
taking an overall view of the evidence adduced in the
case, we are satisfied that the adoption pleaded is true, we
must necessarily proceed on the basis, in the absence of
any evidence to the contrary, that it is a valid adoption as
well.”
For making the aforesaid observations, the Apex Court has
considered peculiar circumstances of that case which are
at paragraphs 12 to 16 and circumstances were as under :
(i) That, Shyamlal, party of the proceeding, who was
contending that he was adopted by Gopal Das, was
adopted immediately after his birth and so he was not in a
position to give evidence on factum of adoption.
(ii) The adoption had taken place more than 54 years
prior to the date of challenge and during life time of Gopal
Das and his wife, the adoption was not challenged by
anybody. Suit was filed against Shyamlal only after the
death of Gopal Das and his wife;
(iii) as many years had passed since the date of adoption,
there was no direct evidence to prove factum of adoption
but there were other circumstances indicating that
Shyamlal was treated as adopted son by Gopal Das for
about 54 years;
(iv) Shyamlal was admitted in school by adoptive father
Gopal Das and application was given to the school by
Gopal Das for getting admission to Shyamlal in which
Gopal Das had given his name as father of Shyamlal;
(v) in a suit in which Gopal Das was a party he had
given deposition that Shyamlal was his adopted son;
(vi) in income tax returns filed by Gopal Das he had
shown Shyamlal as a member of his joint Hindu family;
and,
(vii) In another suit in which Gopal Das and the plaintiff
of the litigation filed against Shyamlal, were on one side
as plaintiffs and in the said proceeding Gopal Das and the
plaintiff had contended that they were partners of the
firm. In that proceeding also Gopal Das had given
deposition that Shyamlal was his son.
24) In the case of the Supreme Court (cited supra)
there was no direct evidence available but there were
aforesaid circumstances showing that Gopal Das had
admitted that he had adopted Shyamlal as his son and he
had treated Shyamlal as his son for more than 54 years.
The Apex Court held that it was ancient adoption and in
view of the facts of that case the Court ought not to have
insisted for direct evidence for proving the factum of
adoption. There cannot be dispute that in view of such
peculiar circumstance it was not proper on the part of the
Court to insist for direct evidence on the factum of
adoption.
25) The aforesaid discussion on law shows that
ordinarily when direct evidence is available, the Court
must insist for proof of factum of adoption on the basis of
direct evidence. Even when there is a document of
adoption, the Court is expected to insist for proof of
factum of valid adoption when direct evidence is available.
There may be surrounding circumstances in existence,
which may be consistent or inconsistent with the direct
evidence. In such cases it becomes the duty of the Court
to ascertain as to whether the witnesses who have given
direct evidence on adoption are trustworthy or not and
that needs to be done on the basis of the surrounding
circumstances.
26) The facts of the aforesaid reported case
indicate that there may be surrounding circumstances like
mutation made in favour of a party claiming rights as
adopted son or there may be circumstances that such a
party had performed last rites of the deceased (adoptive
parents) or the marriage of such party was solemnized by
deceased. On the basis of such circumstances only the
Court is not expected to draw inference that these things
were done only due to adoption. When the Court comes to
the conclusion on the basis of so called direct evidence
that there was no valid adoption, surrounding
circumstances cannot help in proving valid adoption. In
the cases (cited supra) the other probabilities available for
explaining such circumstances are discussed. In one case
it is observed that when no son was born from deceased,
performance of last rites by brother of the deceased or
son of such brother is possible under Hindu law and so
such circumstance cannot weigh much for proving
adoption. Thus, the Court is expected to start with
presumption that the proof of factum of adoption must be
strict and severe.
27) In the case reported as AIR 1983 SC 114 (cited
supra) at para 8 the Apex Court has discussed the scope
available for the appellate Court of appreciation of oral
evidence. The observations are as under :-
“8. The question whether the appellant was in fact
adopted by Jagannathdas and Premwati has been
determined essentially on the basis of oral testimony, and
reference has been made to a few documents only in
supplementation of the oral evidence. At this stage, it
would be right to refer to the general principle that, in an
appeal against a trial Court decree, when the appellate
Court considers an issue turning on oral evidence it must
bear in mind that it does not enjoy the advantage which
the trial Court had in having the witnesses before it and of
observing the manner in which they gave their testimony.
When there is a conflict of oral evidence in any matter in
issue and its resolution turns upon the credibility of the
witnesses, the general rule is that the appellate Court
should permit the findings of fact rendered by the trial
Court to prevail unless it clearly appears that some special
feature about the evidence of a particular witness has
escaped the notice of the trial Court or there is a sufficient
balance of improbability to displace its opinion as to where
the credibility lies. In this connection reference may
usefully be made to W.C. MacDonald v. Fred Latimer, AIR
1929 PC 15, 18 where the Privy Council laid down that
when there is a direct conflict between the oral evidence
of the parties, and there is no documentary evidence that
clearly affirms one view or contradicts the other, and there
is no sufficient balance of improbability to displace the
trial Court's findings as to the truth of the oral evidence,
the appellate Court can interfere only on very clear proof
of mistake by the trial Court. In Watt v. Thomas, 1947 AC
484, 486 it was observed “…. it is a cogent circumstance
that a Judge of first instance, when estimating the value of
verbal testimony, only, has the advantage (which is denied
to Courts of appeal) of having he witnesses before him and
observing the manner in which their evidence is given”.
This was adverted to with approval by the Privy Council in
Sara Veeraswamui v. Taluri Narayya (deceased), AIR 1949
PC 32 and found favour with this Court in Sarju Parshad v.
Raja Jwaleshari Pratap Narain Singh, 1950 DSCR 781,
783. It seems to us that this approach should be placed in
the forefront in considering whether the High Court
proceeded correctly in the evaluation of the evidence
before it when deciding to reverse the findings of the trial
court. The principle is one of practice and governs the
weight to be given to a finding of fact by the trial court.
There is, of course, no doubt that as a matter of law if the
appraisal of the evidence by the trial court suffers from a
material irregularity or is based on inadmissible evidence
or on a misreading of the evidence or on conjectures and
surmises the appellate court is entitled to interfere with
the finding of fact. Our attention has been drawn by the
respondents to The Asiatic Steam Navigation Co. Ltd. v.
Sub-Lt. Arbinda Chakravarti, (1959) Supp 1 SCR 979 but
nothing said therein detracts, in our opinion, from the
validity of the proposition enunciated here.”
28) When the case of adoption rests on direct
evidence and there is nothing like document of adoption
or Yadi prepared for adoption and the adoption itself is
challenged by a party like widow against whom rights are
claimed by so called adopted son, the Court is expected to
take more care while appreciating the direct evidence
given on factum of adoption. When the trial Court has
done such exercise, the appellate court is expected to
keep in mind the scope in appeal of appreciation of such
direct evidence.
29) Let us see the evidence and the pleadings of
the present matter in the background of aforesaid position
of law. The suit was filed on 9-5-1979 by present plaintiff
for claiming relief of declaration of ownership and for that
he was expected to prove that he was adopted by Baliram
in the year 1950. In the pleadings, he had claimed that he
was aged about 14 years at the relevant time. In
substantive evidence he has stated that he was aged about
12 to 14 years at the relevant time but he remembers the
adoption ceremony.
30) In the pleadings no specific custom was
pleaded and there is vague contention that the
ceremonies necessary for adoption were performed as per
the custom of society in the presence of panchas and
respectable persons. First time in the evidence, the
plaintiff stated that in the ceremony of adoption he was
put on thigh (lap) of Baliram by Ramrao and then the
priest by name Prabhu Swami made the plaintiff to eat
sugar. He has deposed that pooja was performed by his
natural father, by Baliram, by defendant No.1 and the
plaintiff. He has deposed that this ceremony took place in
the house of Baliram in the evening time.
31) Neither in the pleading nor in the evidence the
day, date or month of adoption is given by the plaintiff.
Even the name of priest was not mentioned in the
pleadings. First time in the substantive evidence the
plaintiff took name of the priest and he took names of
some witnesses. The evidence as it is does not show that
there was declaration or utterance of any words by
Baliram showing that he had taken plaintiff in adoption
though plaintiff has deposed that he was put on the lap of
Baliram.
32) In the cross examination, plaintiff has stated
that talk about taking him in adoption by Baliram was
started from his childhood. He has given evidence that
many persons from his village and one person from other
village attended the adoption ceremony. He has deposed
that no document of adoption or even Yadi was prepared
and no invitation cards were printed to invite people for
attending the adoption ceremony. He has deposed that
age of Baliram at the relevant time was about 80 to 90
years and the age of Ramrao was around 70 to 75 years.
33) Triveni (PW 2) wife of Digamber, a brother of
the plaintiff, is examined as witness to adoption by the
plaintiff. It is already observed that her name is not
mentioned in the pleadings. Her name was not taken even
in substantive evidence by plaintiff. These circumstances
need to be kept in mind while appreciating evidence of
Triveni.
34) Triveni has deposed that she was given in
marriage to Digamber when she was aged 10 to 11 years
and the adoption took place after her marriage. Triveni
has deposed that adoption ceremony took place in the
house of Rambhgau (plaintiff has stated that the adoption
took place in the house of Baliram). When the plaintiff had
not given the names of other witnesses except the names
of witnesses like Prabhu Swami, this witness has given
names of many other witnesses by saying that they had
also attended the adoption ceremony.
35) Triveni has deposed that during adoption
ceremony Rambhau put the plaintiff on the thigh (lap) of
Baliram. She has deposed that Prabhu Swami, priest,
performed pooja and told that the plaintiff had become
son of Baliram. Thus, Triveni has also not given evidence
that there was declaration from Baliram that he had taken
plaintiff in adoption.
36) In the cross examination, Triveni has deposed
that invitation cards were printed for inviting people for
adoption ceremony. In the cross examination she has tried
to say that the persons only from their community, Jangam
community, had attended the ceremony but then she
contended that the ceremony was attended by persons of
other community also.
37) Triveni has given the age of Baliram as 60
years and she has stated that plaintiff was aged about 10
to 11 years at the relevant time. She has given evidence
that document of adoption was written by Prabhu Swami
and this document was handed over by Prabhu Swami to
Baliram. She has given evidence that adoption ceremony
took place in the morning time. Thus, there are
inconsistency in the evidence of Triveni and the plaintiff
on many points like the place of adoption, time of
adoption, printing of invitation cards and writing of
adoption document. These inconsistencies cannot be
called as minor inconsistencies.
38) The evidence of Triveni does not show that she
has knowledge about agricultural lands which were owned
by Baliram or even Rambhau. It appears that when
deposition of Triveni was recorded Digamber, her
husband, was not alive. However, other witnesses like
sister of the plaintiff was alive and that can be seen from
the evidence of the plaintiff and other witnesses. Said lady
was already married, she was elder to plaintiff and so she
could have been the better witness to prove adoption. The
evidence further shows that the husband of the said sister
of the plaintiff is alive and it is stated in evidence that said
husband had attended the adoption ceremony. No
explanation is given for non examination of these
witnesses. In any case names of Triveni or those witnesses
are not mentioned in the pleadings or in the substantive
evidence by the plaintiff.
39) Ramkishan (PW 3) is another witness examined
to prove the adoption. In the cross examination, he has
admitted that he is from Bhavaki, relative, of the plaintiff
and persons from his society and persons from other
community had attended the ceremony. The cross
examination shows that against brother of defendant No.3
(purchaser of suit land) he had a litigation and said suit
was decided in favour of the brother of the defendant
No.3. This circumstance shows that he has no good
relations with the defendants and so he is interested
witness. In view of this circumstance his evidence needs a
close scrutiny.
40) Ramkishan has given evidence that the
adoption took place in the house of Rambhau. He has
given evidence that during ceremony, Rambhau stated
that as he had two sons, he was giving plaintiff in
adoption. This witness has also not given substantive
evidence to the effect that Baliram had stated that he was
accepting plaintiff in adoption.
41) In the cross examination, Ramkishan has stated
that husband of the sister of the plaintiff had attended the
ceremony. He has given evidence that age of Baliram was
about 55 to 60 years at the relevant time. This evidence of
Ramkishan is not consistent with the evidence of the
plaintiff in respect of place of adoption, age of Baliram
and the persons who had attended the adoption ceremony.
This witness gave his age as 57 years when his deposition
was recorded in 1984 and so he had not crossed age of 30
years at the relevant time.
42) Trimbak Kale (PW 4) is examined as one more
witness to prove adoption. His evidence shows that he is
also relative of the plaintiff. He has given evidence that
during ceremony, Rambhau gave plaintiff in adoption to
Baliram. This witness has not stated anything about the
manner in which the giving and taking took place.
Ramkishan has also not stated anything about such
manner. Trimbak has also not uttered a word to say in
what manner Baliram declared that he had taken plaintiff
in adoption.
43) Trimbak (PW 4) has stated in the cross
examination that writing about the adoption was done and
it was signed by his father and other witnesses. He has
deposed that this document was written by Prabhu Swami
and it was handed over to Baliram. According to the
plaintiff no such document was brought in existence and
so on this point also the evidence of Trimbak is not
consistent with the evidence of the plaintiff. It appears
that only during re-examination he stated that the
document was handed over to Baliram. There is clear
possibility that such version was afterthought as there is
no such document with the plaintiff.
44) Prabhu Swami (PW 6), the priest, has given
evidence that he had performed pooja of adoption. He has
given evidence that oath was given to natural father to the
effect that the natural father had given plaintiff in
adoption to adoptive father. He has deposed that oath was
administered to the adoptive father to the effect that he
had taken plaintiff in adoption. It is already observed that
such particulars are not there in the pleadings. Such
particulars are not present in the substantive evidence of
the plaintiff. Such particulars are not there in the
evidence of other witnesses also.
45) Prabhu Swami has given evidence that adoption
ceremony took place in the house of Rambhau. In the
examination in chief itself Prabhu has stated that one chit
was written by him at the time of adoption ceremony in
respect of the adoption and he had handed over the chit to
Rambhau. This is altogether different version than the
version given by aforesaid two witnesses. The plaintiff is
not saying anything about such chit and if the chit was
handed over to Rambhau, the natural father of the
plaintiff, it was very much possible for the plaintiff to
produce and prove that chit. The evidence of the so called
priest shows that entry about this ceremony was not made
in the record of the community and he himself did not
maintain record of such ceremonies. Thus, there is
virtually no record but evidence is given on creation of
such record.
46) The evidence of Prabhu Swami shows that he is
educated person. When he is educated, he could have
given day, date or month of the ceremony. He has given
evidence that 50 persons had attended the ceremony
when other witnesses have stated that about 20 to 25
persons attended the ceremony. Thus, the evidence of this
witness also is not consistent with the evidence of the
plaintiff and other witnesses. There is no circumstantial
check like the document of adoption or Yadi of adoption.
When the widow of Baliram has denied that there was
such adoption, burden was heavy on the plaintiff to prove
the factum of adoption. As there is no circumstantial
check like quoted above and the so called direct evidence
is not consistent and convincing, the trial Court had
refused to believe the plaintiff and his witnesses. Here
only it needs to be kept in mind that defendant No.2 –
Champabai is the first wife of plaintiff but she has stated
on oath that as per her information there was no adoption.
She is not only the wife of the plaintiff but she is a
daughter of sister of defendant No.1. Her evidence shows
that she came in picture when she was given in the
marriage to the plaintiff and as she was resident of
Wadgaon in the past, she had no personal knowledge.
However, she has given evidence that her marriage with
the plaintiff took place in the house of Rambhau, the
natural father of the plaintiff. She has given specific
evidence that at the time of marriage, plaintiff was living
with Rambhau and Baliram was not alive. In the
pleadings, the plaintiff has specifically contended that
within six months from the so called date of adoption
Baliram died. It was not his case that Baliram had
solemnized his marriage with defendant No.2 though he
has tried to give such substantive evidence. These
circumstances are important as the subsequent events
show that defendant No.1 had attachment towards
defendant No.2 and so she gifted the suit lands to
defendant No.2. Only after the marriage, the plaintiff was
in possession but to cultivate the suit lands. Learned
counsel for the plaintiff argued much on the basis of so
called admissions given by defendant No.2 in her
evidence. She has admitted that she had lived in the house
of defendant No.1 along with plaintiff and second wife of
the plaintiff. Not much weight can be given to this
admission as defendant No.1 was widow, she had no
support of any male member and there is record to show
that she preferred to gift the property to defendant No.2.
There are more circumstances to show that even
defendant No.1 never treated the plaintiff as her son.
47) If the surrounding circumstances are
considered, from the pleadings it can be said that Baliram
had no occasion like marriage or other functions to show
to the world that he had adopted the plaintiff. Though
plaintiff married two times, there is no record of marriage
to show that defendant No.1 had acted as his mother in
the marriage and the plaintiff had given name of Baliram
as his father. In the plaint, many properties of Baliram
(three agricultural lands) are not mentioned and the
transactions of sale made by defendant No.1 in respect of
these lands are not challenged. Absence of mention of
these lands in the plaint create all probabilities like
ignorance of plaintiff about such properties of Baliram
and his belief that he was not entitled to challenge the
transactions as the properties belonged to defendant
No.1.
48) It is not disputed that all the agricultural lands
of Baliram were mutated in the name of defendant No.1
after the death of Baliram. If Baliram had died prior to
1956, in ordinary course the properties would have been
entered in the name of the plaintiff if he was really
adopted by Baliram. This did not happen. It needs to be
kept in mind that one house property is shown to be
entered in the name of plaintiff but that assessment
record is of the year 1982-83 created after starting of the
litigation. It is not disputed that the defendant Nos.1 and
2 were living in this house before they left for Chousala.
The defendants have specifically contended that only due
to harassment of plaintiff and his brother, they were
required to leave Ghargaon and then plaintiff got the
possession of the house and got entered his name in the
assessment record of the house. Defendant No.1 was lady
aged about 75 years and she was widow. Defendant No.2
was deserted by plaintiff and then her two daughters were
given in marriage by her. The evidence on the record
shows that they had no support in village Ghargaon. In
view of these circumstances, not much can be made out
from the circumstance that in the assessment record of
the year 1982-83 of the suit house after filing of suit, the
name of the plaintiff was shown as occupant. Such record
cannot confer title on the plaintiff.
49) At Exhibits 10 and 11 there are pahani patrak
of Survey Nos.84/3, 92/3. This record shows that name of
Yamunabai, defendant No.1, widow of Baliram, was
entered as owner of these lands from prior to 1955. This
record is for 1955 to 1958. Exhibit 10 shows that name of
Chandrabhan (plaintiff) was entered in pahani patrak of
land Survey No.84/3 as the person in occupation,
cultivating the land. However, this entry also does not
show that the plaintiff had given the name of his father as
Baliram. Only name of "Chandrabhan" is mentioned in
Exhibit 10. On the other hand, in Exhibit 11, Pahani
Patrak of other suit land, name of plaintiff was entered in
cultivation column as "Chandrabhan Rambhau". Thus in
the year 1955 the plaintiff used name of Rambhau as his
father and he was not using name of Baliram. It is clear
that in 1955 Baliram was not alive and the plaintiff could
get opportunity for entering the name in cultivation
column as he has married with defendant No.2. The 7/12
extracts of these agricultural lands, suit lands, show that
from 1959-60 onwards name of Yamunabai, defendant
no.1, was entered even in crop cultivation column. Thus,
name of the plaintiff was deleted from crop cultivation
column from the year 1959 and it shows that he must have
left village Ghargaon in that year.
50) There is pahani patrak in respect of land
Survey No.86 for the years 1955-59 and it shows that
name of "Chandrabhan" was entered in occupation
column. In this document also name of his father was not
mentioned. In pahani patrak of land Survey No.100 name
of Yamunabai only was entered for the years 1955-59
both as owner and person in possession (Exhibits 43 and
44). The 7/12 extract in respect of these three lands for
the year 1959-60 onwards show that the name of the
plaintiff came to be deleted from record and the name of
Yamunabai only was entered both as owner and person in
possession. In the record of Survey No.109 name of
Yamunabai only was entered in both ownership and
cultivation column. Name of the plaintiff was not entered
even in cultivation column of Survey Nos.100 and 109.
51) The pleadings of the plaintiff and the aforesaid
record show that after the death of Baliram mutation was
effected and the name of Yamunabai only was entered as
successor of Baliram in the record of rights. The plaintiff
admittedly did not take steps to enter his name as
successor even when according to him, he had the right to
do so. It needs to be kept in mind that Baliram died prior
to 1956 and so in ordinary course name of the plaintiff
only could have been entered in the revenue record as
successor of Baliram if he was really taken in adoption by
Baliram. The entry of name of the plaintiff in crop
cultivation column of few lands cannot help him in any
way. The entry was not made as successor of Baliram and
he did not give name of his father as Baliram but in one
record his name was given as Chandrabhan Rambhau.
52) The aforesaid record is not consistent with the
case of the plaintiff on adoption. The oral evidence on the
record and the aforesaid revenue record create only one
probability that as plaintiff had lived with defendant Nos.1
and 2 in the house of defendant No.1, his name was
entered in the crop cultivation column of the few lands.
There is clear probability that he was allowed to cultivate
the lands as there was no male member in family of
defendant No.1 to look after the lands and as defendant
No.1 wanted to give the properties to defendant No.2 and
as plaintiff was husband of defendant No.2.
53) It is not disputed that defendant No.1 had
executed document of gift in favour of defendant No.2.
Copy of mutation No.114 produced at Exhibit 75 shows
that in the year 1972 defendant No.1 executed such
document, she produced the document before the revenue
authority and she requested to enter name of defendant
No.2 as owner of the two suit lands. The wording used in
the report given by the defendant No.2 to the revenue
authorities is important and it shows that defendant No.1
had informed to the revenue authority that defendant
No.2 was daughter-in-law of brother of her husband
(p qyr l wu). Admittedly, the aforesaid mutations were
never challenged by the plaintiff.
54) It is not disputed that defendant No.1 had sold
survey No.86/1 under sale deed dated 10-2-1966. Copy of
mutation is at Exhibit 45 and it was sanctioned on 8-12-
1967. This sale transaction made by defendant No.1 is not
challenged by the plaintiff though he had contended that
defendant No.1 had no right to sell the suit property.
Similarly, defendant No.1 had sold Survey Nos.100/3 and
109/3 under sale deed dated 24-7-1972 to one Mukunda.
At Exhibit 46 there is copy of Mutation No.122 sanctioned
in the year 1973. This transaction is also not challenged
by the plaintiff. Conduct of the plaintiff of not challenging
the mutations and also the sale transactions in respect of
aforesaid three agricultural lands goes long way against
the plaintiff. This conduct creates probability that there
was no adoption. Though plaintiff had tried to contend
that he got knowledge in the year 1979, this contention is
not acceptable. The revenue record like pahani patrak
shows that the aforesaid lands were parts of the old land
survey numbers which were owned by Baliram and
Rambhau together. Thus, the lands of Rambhau were
adjacent to the aforesaid three lands and so it can be said
that Rambhau or Digamber and then the plaintiff had no
knowledge about the aforesaid mutations and sale of the
three lands to third parties by defendant No.1. This
voluminous record is ignored by first appellate Court.
This record is consistent with the case of the defendants
and it is not consistent with the case of the plaintiff.
55) From the aforesaid record and circumstances it
can be said that in or about the year 1959 the plaintiff
shifted to Wadgaon with his second wife. He did not
produce record even of second marriage. He did not
examine witness like relatives of his second wife who
could have given evidence about the part played by
defendant No.1 in this marriage. On the other hand, the
defendants have produced some record to show that
plaintiff was using name of Rambhau as his father. The
defendants have examined one Narsing Kulkarni (DW 2)
to prove the record of ration card of the plaintiff obtained
in village Wadgaon. The record and the evidence of this
witness show that for getting ration card in the year 1976
the plaintiff had given his name as "Chandrabhan
Rambhau". There is no reason to disbelieve this record
and this record is not consistent with the case of the
plaintiff. The first appellate Court has not considered this
evidence.
56) Witness Kashinath Thalkari (DW 3) who is
resident of Wadgaon and witness Ganpat Kharbad (DW 5)
who is also resident of Wadgaon are examined by
defendants to show that the plaintiff has been using the
name of Rambhau as his father. The evidence of these
witnesses shows that plaintiff was living in the house of
one Balikram Master as tenant with his wife Shivganga,
second wife. In view of the aforesaid circumstances and
the other record there is no reason to disbelieve these
two witnesses.
57) Mahadeo (DW 4), Gram Sevak of village Yusuf
Wadgaon is examined by the defendants to prove the
record of birth of daughter from second wife of the
plaintiff. The oral evidence and the record show that on
31-12-1959 the plaintiff had reported to the local body by
giving his name as Chandrabhan Rambhau that a
daughter was born to him. Exhibit 112, entry made in the
births and deaths register is very old entry and there is no
reason to doubt this entry.
58) Jaiwant Jogdand, Gram Sevak of village SoniSanghvi
is examined by defendants to prove some record.
The evidence of this witness and the record of the village
panchayat at Exhibit 125 (register of cattle pond) show
that on 26-6-1966 Chandrabhan Rambhau Kale, r/o
Ghargaon, at present resident of Yusuf Wadgaon had
handed over stray cattle to the cattle pond of the village
panchayat. This witness was acting as gram Sevak since
1962. In the Court, the witness identified the plaintiff as a
person who had handed over the cattle along with
application. In the cross examination, nothing is brought
on record to create probability that this record is not
correct, it is false. There was virtually no reason for this
witness to give false evidence against the plaintiff.
59) Witness Gangadhar Lamture (DW 7) was
Sarpanch of village Wadgaon for about 5 years from the
year 1964 onwards. He has given evidence that the
plaintiff was living in village Wadgaon for 20 to 25 years.
In the record of the village, his name was recorded as
Chandrabhan Rambhau Kale. There is no reason to
disbelieve this witness also in view of the record available.
Copy of voters list is produced at Exhibit 131 for the year
1975. The voters list is for the village Wadgaon and it
shows that in House No.258-3, Shivganga, second wife of
the plaintiff was living along with her husband Kale
Chandrabhan Narayan. There is clear probability that
name of father as Narayan was either given by mistake or
it was given intentionally by the plaintiff. There is no
evidence to show that there is another person having the
said name and he has wife by name Shivganga. This
record also needs to be used against the plaintiff. Thus,
as per the record in village Wadgaon (Yusuf) the plaintiff
was always using the name of his natural father Rambhau.
60) The plaintiff has relied on the record of one
cooperative credit society of village Ghargaon. Witness
Bansi Hazare (PW 7) is examined to prove this record.
Evidence is given that in the year 1961 the plaintiff had
obtained crop loan by giving his name as Chandrabhan
Baliram Kale. The evidence is given in the year 1984.
Defendant No.1 had deposited the amount for repayment
of the loan. It is already observed that for some time
plaintiff was living with defendant Nos.1 and 2. Even two
daughters were born to defendant No.2 from plaintiff. It
is already observed that the plaintiff was cultivating the
lands of the defendant No.1 and he had managed to enter
his name in the crop cultivation column of at least three
lands. However, the Credit Society could not have given
loan in the name of the plaintiff as he was not the owner
of the lands. These things are fishy. It is already observed
that on the basis of such circumstances inference is not
possible that there was adoption. No record of loan of
that transaction is produced. Such record could have
helped to show as to whether the defendant No.1 was
party to the transaction and she had allowed the plaintiff
to use the name of Baliram as his father. There was no
alternative for the defendant No.1 than to make payment
of the loan as plaintiff was husband of defendant No.2 and
he was cultivating the lands during his stay in the house
of defendant No.1. Further, there is record to show that in
the year 1959 the plaintiff had shifted to Wadgaon and his
name was not entered even in crop cultivation column
after that year. Due to these circumstances, no wight can
be given to the evidence of Bansi and some receipts of
payment of loan in the name of Chandrabhan Baliram.
61) The plaintiff has relied on copy of voters list of
village Ghargaon. It was of the year 1971. This record
shows that in House No.139 following voters were living :-
(i) Kale Yamunabai Baliram;
(ii) Kale Chandrabhan Baliram;
(iii) Kale Champabai Chandrabhan;
(v) Kale Rakhminbai Chandrabhan.
It is already observed that Shivganga was the name of
second wife of the plaintiff and not Rakhminbai. Name of
Shivganga was in the voters list from Wadgaon also.
There is clear probability that in the voters lists of both
places name of plaintiff was entered. It is noticed that
names of many voters are entered in the voters list of
many constituencies and that is done by the persons
interested in contesting election or by their workers. The
plaintiff was not living in Ghargaon in the year 1971. So,
not much importance can be given to the voters list of
that year of village Ghargaon.
62) Some assessment receipts in respect of house
property from village Ghargaon are produced showing
that the assessment was paid in the name of plaintiff from
the year 1975-76. The aforesaid record like voters list of
Wadgaon and the circumstances show that in that year the
plaintiff was probably living in Wadgaon. These receipts
of assessment cannot help the plaintiff in any way. It is
already observed that the plaintiff had created some such
record.
63) For proving the surrounding circumstances
also, the burden was on the plaintiff. It was up to him to
show that he was being treated as son by Baliram and by
defendant No.1 and was not treated as son of Rambhau.
Record on the contrary shows that he was using the name
of Rambhau as his father. When there is voluminous
record including revenue record to show that the plaintiff
was using the name of Rambhau as his father and he
never challenged the transactions made by defendant
No.1, few pieces of circumstances mentioned above
cannot help the plaintiff and on the basis of such
circumstances inference is not possible that the plaintiff
was taken in adoption by Baliram.
64) It is already observed that probably in or about
year 1959 plaintiff started living separately from
defendant No.2. The evidence on the record and the
circumstances show that there was cohabitation for 6 to 7
years and two daughters were born to defendant No.2
from the plaintiff. He did not participate in the marriages
of two daughters. Though defendant No.2 has given
evidence that there was cohabitation for 20 to 25 years,
such admission cannot help the plaintiff when plaintiff
himself has contrary contentions. Evidence on record
shows that plaintiff had not taken care of either defendant
No.1 or defendant No.2 after 1959. There is clear
probability that defendant No.1 had attachment towards
defendant No.2 and due to that she had allowed defendant
No.2 and plaintiff to live with her and she had allowed
plaintiff to cultivate the lands for few years. It is clear that
after second marriage, plaintiff left house of defendant
No.1, and he shifted to Wadgaon. There is some evidence
given through Triveni to show that the properties of
Rambhau were not succeeded by plaintiff. But no record
in that regard is produced. Such circumstances could
have been proved only by producing some record and the
oral evidence, even the admission of other side cannot
help the plaintiff in that regard.
65) All the aforesaid circumstances and the record
were considered by the trial Court. Due to the
circumstances the trial Court had refused to believe the
plaintiff and his witnesses. The reasoning given by the
first appellate Court, which is already quoted, shows that
the first appellate Court has committed serious error in
interfering in the decision of the trial Court. Such decision
cannot sustain in law.
66) The learned counsel for the plaintiff placed
reliance on a case reported as AIR 2005 SC 1020
(Christopher Barla v. Basudev Naik) and submitted that
interference in second appeal is not possible when the
finding is a finding of fact. This Court has already quoted
the material and the circumstances which are relevant
and which were not considered by the first appellate
Court. The finding of the first appellate Court is perverse
and interference is warranted. The first appellate Court
has not given due weight to the finding given by the trial
Court which was based on oral evidence and the
surrounding circumstances.
67) The learned counsel for the plaintiff placed
reliance on one more case reported as AIR 2002 SC 2416
(Raushan Devi v. Ramji Sah). The facts of this reported
case show that there was deed of adoption and the
adoptive father had supported the case of the adoption of
the son. These facts were different. The facts and
circumstances of each and every case are always different
and the Court is expected to decide the matter on the
basis of the facts and circumstances of a particular case.
68) The learned counsel for the plaintiff placed
reliance on the cases reported as (1) AIR 1972 Bombay
164 (Sadashiv Shankar Wani v. Bala Nisbat Babaji Wani);
(2) 1943 BLR 992 (Tirkangauda M. Kashigaudar v.
Shivappa Patil) and (3) A.I.R. (32) 1955 Nagpur 60
(Maroti Bansi Teli v. Radhabai Tukaram Kunbi). Learned
counsel for the plaintiff submitted that parties belong to
Wani Jangam community and they are treated as Sudra
under Hindu law. He submitted that no religious
ceremonies are required for Sudra for adoption. He
submitted that mere giving and taking are enough. There
is no dispute about the proposition and this proposition is
already considered by this Court.
69) The learned counsel for the plaintiff placed
reliance on a case reported as AIR 2003 SC 4319
(Rajgopal v. Kishan Gopal). Facts of this reported case
show that there was dispute over the form of adoption and
there was no dispute about factum of adoption. In view of
the circumstances of that case, it was held that the finding
given by the Courts below was finding of fact and so it
was held that no interference was possible in the second
appeal. There cannot be dispute over the proposition
made in this reported case also.
70) In view of the discussion made above, this
Court holds that the judgment and decree of the first
appellate Court needs to be set aside by answering all the
substantial questions of law against the plaintiff. In the
result, the substantial questions of law are answered
accordingly.
71) The appeal is allowed. The judgment and
decree of the first appellate Court is hereby set aside and
the judgment and decree of the trial Court is hereby
restored.
(T.V. NALAWADE, J. )
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