TMI Blog1982 (11) TMI 176X X X X Extracts X X X X X X X X Extracts X X X X ..... Kanhaiyalal (died in 1923) Jamnadas (died in 1939) Mankuarbai M. Narayanibai (Respondent) Narsinghdas (Respondent) Jagannathdas M.Premwati Balkrishandas Goverdhandas Madhusudandas (appellant) Tribhuwandas Jagannathdas and his wife Premwati had no children. Premwati suffered from tuberculosis for several years and died on September 24, 1951. After her death Jagannathdas created a trust by a registered deed dated March 17, 1952 called the Seth Mannoolal Jagannathdas Hospital Trust in respect of most of his estate He reserved the right to revoke the trust, but subsequently by a further document dated July, 14, 1952 he relinquished that right. Ever since the inception of the trust the trustees have remained in possession of the estate. The appellant filed the present suit on September 24, 1957 against Jagannathdas and the other trustees claiming that he had been adopted by Jagannathdas and Premwati as their son on September 24, 1951 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as to where the credibility lies. In this connection, reference may usefully be made to W.C. Macdonald v. Fred Latimer(1) 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(2) it was observed: ... it is a cogent circumstance that a judge of first instance, when estimating the value of verbal testimony has the advantage (which is denied to courts of appeal) of having the 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 Veeraswami alias Sara Veerraju v. Talluri Narayya (deceased) and others(1) and found favour with this Court in Sarju Parshad v. Raja Jwaleshwari Pratap Narain Singh and Ors.(2). It seems to us that this approach should be placed in the forefront in considering whether the High Court pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the idea. He would willingly agree to whatever she wanted. There is evidence that Mankuarbai, who lived with Jagannathdas, knew of Premwati's desire to adopt a son. The desire to adopt a son was known to others also, and they included Narsinghdas. For it was first decided to consider the adoption of his son Gopaldas There is clear evidence that the child spent six months to a year in the house of Jagannathdas spending the day with Premwati and sleeping during the night with Mankuarbai. For some reason, however, it was decided not to r adopt him. There is a suggestion in the evidence that his horoscope indicated an early death, but the trial court has not relied on this. The desire to adopt a son continued and it was in the circumstances only natural to consider one of the sons of Seth Jamnadas, the only other brother of the father of Jagannathdas The appellant, Madhusudandas, was then a boy studying in college and the choice alighted on him. The trial court relied on the evidence of, among others, Narayanibai, mother of Jagannathdas, in reaching this conclusion. It has also referred to material clearly showing that when Premwati went to Panchmarhi in the summer of 1951 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re case set up in evidence was completely demolished by the undisputed fact that Premwati had indeed signed the adoption deed on September 24, 1951. Much capital was made by the contesting respondents of the fact that the appellant had not examined Gopmath Vaidya to establish the condition of Premwati's health and the fact of adoption on September 24, 1951, but the trial court, in the course of its judgment, has referred in some detail to the appellants efforts to have the evidence of that witness recorded. At the appellant's instance a commission had been issued at Hathras for the examination of Ramsarandas and Gopinath Vaidya. On June 22, 1960 both witnesses were present before the Commissioner at Hathras, but the Commissioner took an unexpectedly long time in examining Ramsarandas on that day, and on the next day, to which he had deferred the examination of Gopinath Vaidya, he left town suddenly to see his sick son. The appellant, the trial Court pointed out, sought to examine the witness on a subsequent date in court at Jabalpur, but the witness did not appear. In regard to the actual ceremony of adoption The trial court f took into account the evidence of several wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been returned to Jagannathdas and the trial court permitted a photograph of it to be exhibited in evidence. The signatures on the letters were proved to be those of Jagannathdas and the trial court found that it was not a fabricated document. The trial court also referred to the testimony of Narayanibai that her son Jagannathdas had desired that his last rites be performed by the appellant, and there is no dispute that the appellant did perform the rites. There was a letter dated September 27, 1957 purporting to have been written by Jagannathdas to Narsinghdas indicating that Jagannathdas had taken exception to the appellant instituting the present suit and he desired that the suit be resisted vigorously in order to protect the trust. The trial court has commented that this letter was produced very late during the trial of the suit in September 1961, without any adequate reason for the delay, and it observed that the document was not free from suspicion. In the result, the trial court held that the adoption of the appellant stood proved in fact. On the validity of the adoption the trial court examined the law and found that legal requisites for a valid adoption in the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es upon him by proof of the factum of adoption and a its validity. A. Raghavamma and Anr. v. A. Chanchamma and Anr.(1) It is also true that the evidence in proof of the adoption should be free from all suspicion of fraud and so consistent and probable as to give no occasion for doubting its truth. Kishori Lal v. Chaltibai.(2) Nonetheless the fact of adoption must be proved in the same way as any other fact. For a valid adoption, the physical act of giving and taking is an essential requisite, a ceremony imperative in all adoptions, whatever the caste. And this requisite is satisfied in its essence only by the actual delivery and acceptance of the boy, even though there exists an expression of consent or an executed deed of adoption. Shoshinath v. Krishnasunder.(3) In Lakshman Singh v. Smt. Rupkanwar,(4) this Court briefly stated the law. thus: Under the Hindu Law, whether among the regenerate caste or among Sudras, there cannot be a valid adoption unless the adoptive boy is transferred from one family to another and that can be done only by the ceremony of giving and taking. The object of the corporeal giving and receiving in adoption is obviously to secure due publicity. To ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e those observations it had in mind cases where it was possible no doubt to make the acknowledgements, observe the ceremonies and give the notices adverted to by it. It had in contemplation the usual kind of case where that was possible and where though possible it had not been done. The standard of proof required would then have been the standard laid down by the Privy Council. The High Court applied that standard to a case which was quite different. The issue here was whether the adoption has been effected in circumstances which plainly did not permit time for making acknowledgements, observing elaborate ceremonies and giving notices generally. According to both parties, Premwati was seriously a ill. The appellant's case is that she was so ill that she wanted to effect the adoption that very day. The respondents have alleged that she was already incapable of any activity. It is inconceivable that any elaborate arrangements for adoption could have been envisaged. In consequence, the High Court misdirected itself in applying a standard of proof to the evidence which the circumstances did not warrant. Its appreciation of the evidence is founded in that misdirection, leading to f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion. We think the more reasonable way of looking at it is that Premwati had intended to mean that although otherwise there was still time for fixing a date in the future for adoption the poor state of her health did not permit her waiting any longer and the adoption should take place that same day. The High Court has discovered apparent discrepancies in the testimony of some of the witnesses produced by the appellant, but it seems to us that it has attempted to make too fine a point in regard to what those witnesses said or did not say. The High Court inferred that Sunderbai did not visit Premwati at mid-day on September 24, 1951 and this was based on the statement of Rattan Kumari that Sunderbai was not in Premwati's room nor in the adjoining verandah when Rattan Kumari visited Premwati between noon and 12-30 p.m. The High Court failed to note that this was about the time when Sunderbai had left Premwati to make arrangements for summoning the appellant from his college to come to the house. The High Court has also commented that it was not natural that Sunderbai should not have asked Premwati why her son was being called. The High Court in our opinion omitted to consider th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter-measures, and he could have been able to assert his will over Jagannathdas only after Premwati's restraining influence was removed from the scene. With a person of Jagannathdas's weak character and at a time when he was oppressed by his wife's death and bewildered by the confusion surrounding him, that would not have been difficult. Indeed, the pressure of Narsinghdas's influence began to manifest itself almost shortly after the adoption had taken place, and Premwati, who was aware of the injury which he could work on her husband's simple mind, insisted on the execution of an adoption deed while she was still alive in order to protect the adoption. That her misgivings were not unfounded is evident from the circumstance that shortly after the document had been entrusted to Seth Govinddas, Jagannathdas asked for its return. The High Court has declined to accept the adoption also on the ground that the adoption deed mentioned the performance of a havan and other ceremonies when in fact there is no evidence whatever that those ceremonies were performed. It does appear that there is an inconsistency between the case of the appellant and some of the recitals ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cceptance of the appellant as his son. It may be noted that this case of adoption was not conceived for the first time by the appellant when the suit was filed; the claim to that status had been asserted by an application made as early as October 20, 1951. The High Court rejected the letter dated August 21, 1957 written by Jagannathdas to his mother accepting the appellant as his son. We are not impressed by the reasons given by it. It erred in assuming that the photostat copy was produced only at the stage of evidence. It was in fact filed by the appellant on February 15, 1958 before the written statements of the defendants were filed. We have referred to some of the errors which vitiate the judgment of the High Court. It is not necessary, we think. to advert to all of them It is sufficient to say that there was no adequate ground for the High Court to interfere with the finding of the trial court. We are of opinion that the finding of the High Court that the appellant had not proved his adoption must be set aside and that of the trial court restored. It is urged by the contesting respondents that in the event of the Court holding that the appellant is the adopted son of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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