Minor Ramsunder Bhagat And Another v. Rambharosi Bhagat And After Him Mt. Rajia .

1. This second appeal is by the defendants to an action for a declaration that defendant No. 1 was not the adopted son of the plaintiff. It is said that, on the 1st March, 1948 the plaintiff had executed a will in favour of defendant No. 1 stating that, after his death and that of his wife, defendant No. 1 would succeed to his properties. That document was registered, but, when the plaintiff saw that document, he learnt that defendant No. 2, father of defendant No. 1, out of ill will and malice had introduced an absolutely false recital in the document to the effect that the plaintiff had taken defendant No. 1 in adoption as his son.

2. This introduction of the recital caused apprehension in the mind of the plaintiff that defendant No. 2 was out to do mischief and create trouble for his wife about the enjoyment of the properties after the death of the plaintiff. It is further said that the plaintiff destroyed the will, and gave notice to defendant No. 2 about, the fraudulent insertion of the recital above mentioned in the said will. Upon these allegations, the suit was brought for a declaration as mentioned above.

3. The defence, so far as it is relevant for the purposes of the present appeal, was that defendant No. 1 had been actually taken in adoption, and that he was residing with the plaintiff since before the date of actual adoption, but had been driven out of the house after the institution of the suit which was brought at the instance of the wife of the plaintiff who proposed to give four bighas of land to a relation of her, to which defendant No. 2 did not agree. The first Court dismissed the suit. On appeal by the plaintiff, the suit has been decreed, and the declaration sought for by the plaintiff has been given, after recording a finding that the story of adoption was myth and was not proved.

4. During the pendency of the second appeal in this Court, the plaintiff died, and he has been substituted by his wife.

5. Mr. Sarkar, on behalf of the appellants, has submitted, firstly, that the suit was not maintainable; secondly, that there was no cause of action for the suit, and, lastly, that the onus had been wrongly thrown upon the defendants to prove the adoption. I will consider these points in the order mentioned above.

6. The first answer to the question of the maintainability of the suit is that this formed the basis of an issue, issue No. 1, “Its the suit as framed maintainable?”; and at the time of the hearing of the suit, the objection in regard to the maintainability of the suit was not pressed. Mr. Sarkar however, has placed reliance upon certain authorities, e.g, Mahmud Shah v. Pir Shah, AIR 1936 Lah 858 (A); Ganesh Amrit Dhokrikar… v. Rangnath Manohar Pansare…., 46 Ind Cas 49 : (AIR 1918 Bom 196) (B); Daw Pone v. Ma Hnin May, AIR 1941 Rang 220 (C); Rani Anund Koer v. The Court of Wards, 8 Ind App 14 (PC) (D) and Jeka Dule v. Bai Jivi, AIR 1938 Bom 37 (E). These cases are entirely different on facts and no useful purpose will be served by considering these cases in any detail. The relevant portion of Section 42 of the Specific Relief Act runs as follows:

“Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief.”

7. This section, in my opinion, entitles a person to come to court for a declaration, if that person is entitled to (1) any legal character or (2) to any right as to any property. If that person is entitled to certain legal character or to any right to any property, he is entitled to a declaration:under this section. Mr. Sarkar would like me to hold that, unless that legal character is in regard to certain property, no declaration could be given, and the suit would not be maintainable. In other words, the disjunctive “or” should be read conjective “and”. In my opinion, this interpretation is not correct. In this connection, Mr. Sarkar submitted that all the properties belonging to the plaintiff were his self-acquired properties, and that all the properties have been made the subject matter of a dedication to certain deities, as per Arpannma executed by the plaintiff; and, therefore, there was no property at all over which any right could be claimed by defendant No. 1 if he were the adopted son.

8. That does not appear to be borne out by records. The plaintiff, in his deposition, stated that about three or four bighas of land had been left with him after the Arpannama, and that the properties dedicated by the Arpannama were his self-acquired properties. So there are certain properties about three or four bighas of lands over which the Arpannama does not operate. In the case reported in AIR 1936 Lah 858 (A), which was a case of Mohammadans it was held that a suit for mere declaration that the plaintiff was the legitimate son of the defendant was not maintainable, when the plaintiff had no present interest in the properties of his father.

9. That very case, however, had distinguished two of the cases of the Madras and Bombay High Courts, to which I will make reference later, on the ground that these cases dealt with adoption by a Hindu father. In the case reported in 46 Ind Cas 49 : (AIR 1918 Bom 196) (B), an unmarried daughter of a deceased Hindu had brought a suit for a declaration that an adoption made by her mother was invalid. It was held that such an unmarried daughter had no legal position in regard to the family property, and that she was only entitled to be maintained out of it and to her marriage expenses paid from it. Such a suit by her was held to be not maintainable. In the case reported in AIR 1941 Rang 220 (C), no reasons are given at all why a suit for a declaration to the effect that the defendant was not the keitima daughter of the plaintiff was not maintainable.

10. The case of 8 Ind App 14 (PC) (D) has no bearing at all inasmuch as that was a suit by a remote reversioner, and it was held that, as a remote reversioner, he was not entitled to sue. The case of AIR 1938 Bom 37 (E) decided that unless a cloud is cast on the title of the plaintiff, a suit is not maintainable. In the present case, on the facts, there is no doubt that a cloud was cast upon the title of the plaintiff's wife, the present plaintiff, as also on the original plaintiff so far as his obligation to maintain the alleged adopted minor son was concerned. In the present case there is no doubt that, apart from the properties dedicated to some deities, the plaintiff had three or four bighas of land, which is corroborated by the written statement filed by the defendants in which they stated that, as the plaintiff's wife waited to give four bighas of land to some of her relations and the defendant did not agree to that, it was at her instance that the suit had been brought.

11. In that view of the matter, the declaration sought for was not merely a declaration for legal character, but was also a declaration as to right to the property. In the case of Chinasami Mudaliar v. Ambalavana Mudaliar, ILR 29 Mad 48 (F) it has been held that a person was entitled to a declaration, under Section 42 of the Specific Relief Act, that the person alleged to have been adopted had not been adopted as the son of the plaintiff, and that it was not all necessary for the maintainability of the suit that a claim must be set up by the party alleged to have been adopted. It was observed in this case as follows:

“The present first defendant having been appointed guardian ad litem filed a written statement on behalf of the second defendant raising certain contentions founded upon the alleged adoption. It is thus clear that the adoption has been set up under circumstances which would operate to the prejudice of the plaintiff if he did not take steps to have it declared not true if, as he alleges, it never, in fact, took place, for an adopted son becomes from the moment of his adoption a coparcener with his adoptive father with all the incidents attaching to such a status under the Hindu law. Consequently, the setting up of the adoption is such an infringement of the plaintiff's rights, if he is a sole owner, as to entitle him to obtain a declaration under the provisions of the Specific Relief Act.”

12. In the case of Bai Shri Vaktuba v. Agarsinghji Raisinghji, ILR 34 Bom 676 (G), the plaintiff had brought the suit for a declaration that defendant No. 2, a minor, was not his son and that he was not born to his wife, defendant No. 1, and for an injunction restraining defendant No. 1 from proclaiming to the world that defendant No. 2 was the plaintiff's son, and from claiming maintenance for him as such son. The defendant No. 1 contended that the suit was not maintainable under the provisions of the Specific Relief Act. On these facts, it was held that the suit was maintainable being within the provisions of Section 42 of the Specific Relief Act. It was further observed that in the interests of justice it was of the highest importance that such claims should be investigated and decided without unnecessary delay, and when the controversy had once been brought to trial the decision should ordinarily follow in the usual course. I would respectfully quote the following extracts from the judgment:

“It appears to us that having regard to the really serious nature of the question with which the plaintiff was faced as soon as the assertion was made that a son, not admitted by him, had been born to his wife, his contention as to his right under Section 42 of the Specific Relief Act is perfectly reasonable and we hold that this suit is a suit which falls within the purview of S. 42.”

13. In the case of Bansilal Shankarlal v. Shankar lal Ramlal AIR 1933 Nag 292 (H), it was held that a suit for declaration that the plaintiff was and continued to be the adoptive father of the defendant was virtually a suit to declare that the defendant was the adopted son of the plaintiff and was maintainable. In the case of U. Arzeina v. Ma Kyin Shwe, AIR 1940 Rang 298 (I), it was held that a suit for declaration of non-paternity and non-liability in consequence to pay maintenance was competent under Section 42 of the Specific Relief I Act. It is no use multiplying cases, and, upon the authorities and upon the construction of the section itself, it must be held that the plaintiff was entitled to bring the suit for a declaration that defendant No. 1 was not his adopted son.

14. Defendant No. 1 was minor when the appeal to this Court was filed, and, therefore, he was entitled to maintenance by the adoptive family, if the adoption was proved. There is another aspect of the case. Under Article 118 of the Limitation Act, a period of six years is prescribed for a suit “to obtain a declaration that an alleged adoption is invalid or never in fact took place”—when the alleged adoption becomes known to the plaintiff. This Article shows that, if somebody alleges to be the adopted son of a person, the latter is entitled to go to Court and have a declaration, within six years from the date of his knowledge as to the assertion of adoption.

15. The suit, therefore, must be held to be maintainable. The Court below has given the declaration sought for by the plaintiff under Section 42 of the Specific Relief Act. To grant relief is discretionary with the Court, and under that discretion is not judicially exercised, there ought to be no interference by a superior Court in regard to the exercise of jurisdiction. In the present case, nothing has been shown to my satisfaction to prove that the discretion in granting the declaration has not been exercised on proper lines. If any authority were to be needed I would refer to the case of Ishri Prasad v. Ram Krishan Das, AIR 1930 All 620 (J).

16. It was secondly argued that the plaintiff had no cause of action. I have already mentioned that the first issue was in regard to the maintainability of the suit, and that certainly included the point as to whether the suit was not maintain, able as having been filed without cause of action. That issue was not pressed by the defendants, and was answered in favour of the plaintiff. Apart from it, the plaintiff had the cause of action inasmuch as defendant No. 1 was interested in putting himself up as the adopted son of the plaintiff, and being a minor, was entitled to maintenance and, therefore, there was always a potential threat to the plaintiff about the liability of maintenance of defendant No. 1, There is no merit in this contention also.

17. So far as the last contention about the onus of proof is concerned, I have not the least doubt that the person who asserts adoption has got to prove the same, whether he figures as plaintiff or as defendant to an action. Mr. Sarkar submitted that, as the plaintiff himself had raised the fact of adoption in the said will, it was not open to him to assert, in opposition of the recital, that there was no adoption, in the absence of any fraud. Fraud or no fraud, mere recital in a document cannot establish adoption in law: it has to be established as a fact whether adoption has been made or not. The Court below has come to the finding, upon a consideration of the evidence on record, that adoption has not been proved. It is true, it is said in the judgment that the burden of proof lay upon the defendants; but as I have said the onus certainly lay upon the person who had set up the case of adoption, and, therefore, the Court below was right in holding that the onus lay upon the defendants. If any authority were needed reference may be made to Chowdry Pudum Singh v. Koer Oodey Singh, 12 Moo Ind App 350 (PC) (K) and Muthuswami Thever v. Chidamibara Thever, 1948-2 Mad LJ 468 : (AIR 1949 PC 18) (L).

18. No other point has been argued.

19. The result is that the appeal fails and is dismissed with costs.

D.H.Z

20. Appeal dismissed.