Maroti Bansi Teli v. Radhabai

1. This is a suit for possession of certain properties consisting of fields and a house site. Both sides are agreed that the property originally belonged to one Trimbak. The plaintiff claims title to it as follows: Trimbak died in 1937 leaving a widow Girjabai, a mother (defendant 1), and two daughters (defendants 2 and 3). On 20th January 1938 Girjabai adopted defendant 6 Shankar to her husband Trimbak. The adoption was followed by an adoption deed (Ex. P-4) executed on the same day. On the following day (21st January 1938) the adopted son Shankar transferred a part of Trimbak's property to the plaintiff by a sale deed (Ex. P. 3). This was followed by an exchange deed executed on 22nd January 1938 for the purpose of rectifying certain mistakes in the sale deed. The plaintiff bases his title on these two deeds and the adoption of Shankar. The defendants challenge the adoption and also challenge the transfer by Shankar to the plaintiff. It is important to note at this stage exactly what the challenge is. So far as the adoption is concerned, the defendants said (1) that Trimbak had expressly prohibited his widow from adopting and (2) that in any case she was only 13 years old at the time and so had not attained years of discretion. The first Court found against the defendants on both these points, and that finding was not challenged before me by either side; nor does it appear to have been challenged in the lower appellate Court. It was argued before me—and that also seems to have been the position taken up in the first Court at the argument stage — that the factum of adoption was also challenged; but the words used in the written statement are:

“It is denied that thirteen years old Mt. Girja look thirty years old Shankar in adoption with due rites and ceremonies as stated by the plaintiff.”

2. This is ambiguous. One does not know whether the factum of adoption is admitted and only its validity challenged on the ground that the due rites and ceremonies were not performed, or whether this is a general denial of the factum, or whether both the factum and the validity for want of due ceremonies are challenged. Also if the intention was to challenge the adoption for want of due ceremonies it is not disclosed which ceremonies are lacking. Such a vague pleading ought not to have been allowed; but quite apart from the fact that it was allowed we find here again oral statements in flagrant disregard of the rules of pleading, the Code of Civil Procedure, and the repeated protests of this Court. The issue drawn by the Court is equally vague. It runs: “Whether defendant 6 was taken in adoption by Girji as a son to her husband according to Hindu law?” Nobody said a word about Hindu law in the pleadings. What the plaint said and the written statement denied was that the adoption took place “after performing the due ceremonies in accordance with the Hindu Dharmashastras.” The two are not the same; for in the case of Sudras no religious ceremonies are necessary: the mere giving and taking are enough. In a Privy Council case reported in 2 Knapp 2871 Lord Wynford said that the performance of any religious ceremony is not essential to the validity of adoption. This was accepted by the Privy Council in 5 Cal. 7702 at pp. 774, 775, so far as Sudras are concerned. It was also accepted in a recent decision of their Lordships reported in A.I.R 1939 P.C 152 (’39) 26 A.I.R 1939 P.C 152 , %ILR 1939 KAR PC 258 , 181 I.C 311 (P.C) at pp. 154, 155. In this last case their Lordships held that it was enough to constitute the ceremony of giving and taking for the natural father of the boy, and the adoptive mother, and the boy, to be present before the Sub-Registrar and admit execution of a deed of adoption setting forth the giving and the taking, to the Sub-Registrar. Therefore, in a case of Sudras, if a party merely denies that religious rites and ceremonies were not performed he merely alleges that something unessential to the adoption was omitted. That naturally carries his case no further. It was contended here that the plaintiff in a case of adoption must plead that all ceremonies necessary and essential for the validity of the adoption were duly performed and that as there is no such allegation in the plaint about giving and taking the suit must fail quite apart from what the defendants have said. But that is not so. A party relying on an adoption need only plead the bare fact of adoption, and then the law, as in the case of a contract or a marriage, will infer that all that was legally necessary and essential for the validity of the transaction was duly performed. I would refer again to the Privy Council case in A.I.R 1939 P.C 152 (’39) 26 A.I.R 1939 P.C 152 , %ILR 1939 KAR PC 258 , 181 I.C 311 (P.C) at p. 155, where the sole evidence was that the parties were present before the Sub-Registrar that they admitted execution of a deed of adoption setting forth the giving and the taking. It was held that this admission, coupled with their presence, was enough to establish the giving and the taking. If therefore there is in the written statement a bare denial of the adoption it will be taken to imply a denial only of the fact of adoption and not of its legal validity. The principle of the rule given in O. 6, R. 8 of the CPC, would apply. The plaintiff alleged here that he was adopted. That was enough. Nothing more was necessary except of course the date and so forth. The plaintiff then stated that certain religious ceremonies (which incidentally were not essential for the adoption) were also performed. The defendants denied the factum of the adoption and denied that these unessential ceremonies were performed. In doing that they did not deny the legality of the adoption. But in spite of that their case has been decided by the first Court on the ground that there was no giving and taking. Quite apart from the fact that this was not pleaded the matter should at least have been put in issue if it was intended that the whole fate of the case should turn on that one question.

3. However, putting that on one side, I will examine the case from that point of view as well since that is the position which was adopted in the first Court; but before doing so it will be necessary to advert to the findings of the lower appellate Court. Whether there was the necessary giving and taking in this case is a question of fact, and questions of fact are not open to second appeal; but that pre-sup-poses a proper judgment in second appeal. I am not able to accept the judgment of the lower appellate Court here as a proper one.

4. I am not satisfied that the learned Judge applied his mind to the evidence in this case on the only point at issue which mattered on this part of the case.

5. I intend in this case, as I did in the other two cases I have disposed of, to ignore this judgment, but will pause to remark that even if it be accepted it carries the matter no further than the judgment of the first Court because all that the learned Judge says is that he agrees with the findings of the first Court. Now the learned Judge of the first Court has written a careful judgment; but he seems to rue to have gone wrong on the law. As far as I can gather, the learned Judge accepts the fact that there was a ceremony of adoption but considers that it is necessary that there should be a physical and literal giving and taking. He seems to be of the opinion that the giving and taking cannot be established by words to that effect even when all the necessary parties are present. The learned Judge rejects the evidence of P.W 2 to the effect that the adopted son Shankar was actually made to sit in the lap of the adoptive mother; and if that is what the witness meant then I agree that the evidence was rightly rejected. I doubt however if that is what he did mean although those are his words. I think he was probably speaking metaphorically. However, the point is not of much importance because no such placing of the boy in the lap of the mother would be necessary, and that the learned Judge recognizes.

6. I have already referred to the decision of their Lordships of the Privy Council in A.I.R 1939 P.C 152 (’39) 26 A.I.R 1939 P.C 152 , %ILR 1939 KAR PC 258 , 181 I.C 311 (P.C) to show to what extreme simplicity the ceremony of giving and taking can be reduced. All that is necessary is that there should be some overt act to signify the delivery of possession of the boy from the one family to the other: see, I.L.R (1942) Mad. 608 (’42) 29 A.I.R 1942 Mad. 379 , I.L.R (1942) Mad. 608 , 205 I.C 481 and Mayne's Hindu Law, 10th Edn., p. 251. Delivery of possession is equally necessary in other matters; but often it can only be symbolical, as in the case of land. All therefore that the law requires to evidence delivery is some overt act to signify the giving and taking. It is not even necessary that words should be spoken; signs would be enough, a nod or a smile. It will certainly be enough for the one to say ‘I give’ and for the other to say ‘I take’ without anything further provided all are present.

7. If I have not interpreted the learned trial Judge alight as to his findings about the facts then I disagree with him. He holds that there was a ceremony of adoption, and no one can dispute that. He finds that all concerned were anxious to have the adoption made. He says that the plaintiff was the prime mover and the one most interested because he was anxious to secure a portion of the property for himself. We have the fact that the natural father, the adoptive mother, and the boy were all present. We have the fact that two priests were called. We have the photograph (Ex. P-5) showing a cocoanut, etc., on a that in the foreground. We have the deed of adoption executed on the same day, reciting that the giving and taking had taken place, and we have the adoptive mother admitting execution of this deed before the Sub-Registrar. When therefore it is evident from all this evidence that everyone was anxious that there should be an adoption, and when it is clear that the necessity for a giving and taking was prominently present to their minds as the adoption deed shows, and when we find that priests who would know that this is the essential part of the adoption are called, it would be perverse to conclude that all concerned omitted the one essential ceremony and went through a lot of unessentials.

8. The plaintiff's account books support the fact that some sort of ceremony did take place. Why then should not the deed be taken at its face value as in the Privy Council case? It is to be observed that nobody says that the words necessary to constitute a giving and taking were not used. All they say (except P.W 2) is that the boy was not put in the mother's lap. I therefore believe P.Ws 2, 3 and 4 and hold that the necessary words were used, and I hold further that nothing more is required by the law to constitute a valid adoption in the case of a Sudra. It is true there is some discrepancy about the language used on the point of the giving and taking, P.W 2 says it was Sanskrit and not the mother-tongue of the parties. P.W 8 says it was Marathi, P.W 4 does not remember whether it was Marathi or Kunbi. But the point is not material because it does not matter what language was used, nor does it matter whether the parties knew or understood Sanskrit. The point is that all concerned, including the spectators, knew and realized that particular part of the ceremony was the giving and taking portion. So long as that was realized all the rest is unimportant. In fact, as I said before, no words need have been used at all, nods and signs would have served the purpose equally well.

9. As regards the discrepancy on this point between the witnesses, in these long protracted ceremonies where the priests often mutter a jargon, which they themselves probably do not always understand, and the principal parties are continually told at different points in the ceremony what to do and say by a dozen different busy bodies, all talking at once, it becomes very difficult to remember exactly what was done though the fact that the essentials were gone through can be recollected without hesitation. As I have said when all the precautions we find here for a proper and valid adoption were taken it is difficult to believe that the one essential was omitted. I therefore believe the evidence about the giving and taking and consider that the form of this part of the ceremony matters little so long as the principal parties knew what their words and actions imported; and about that I have no doubt whatever. It is to be observed that even the first Court does not hold that this ceremony was not performed: all it states is that there is no proof of an actual physical giving and taking.

10. I can understand the reluctance of the lower Courts to uphold this adoption. The widow was at that time contemplating another marriage, and we find an outsider like the plaintiff, who is even more of an intruder than the adopted son, enriching himself at the expense of Trimbak's mother and sisters, all of whom are near relations. Also there is something not only incongruous but also distasteful in finding a girl of 18, that is the finding about her age, taking to herself a son whose age has been described differently as from 22 to 35 years. But unfortunately the law allows this, and so long as it does Judges have to give effect to it, however reluctantly; it is not for them to effect legislative reforms. People act from mixed motives in these matters just as they do in the case of marriages, and even if it were possible to establish that no vestige of the religious element was present — a matter which should be very difficult—I doubt if that in itself would be enough to invalidate an adoption. But we need not trouble ourselves about that there because this issue has not been raised and it has not been tried. Comment was made on the fact that the adoptive mother, the adoptive son, and the natural father were not called as witnesses though they are still alive. But there was no need for the plaintiff to do that. He had before him the adoption deed so far as the adoptive mother was concerned, and the adoptive son has admitted everything as a party to the suit. In the absence of rebutting evidence nothing more was necessary.

11. I turn next to the transfer made to the plaintiff by defendant 6, a matter which has also been challenged. Here also I am unable to accept the finding of the lower appellate Court. The learned Judge had to consider whether consideration passed, and all he says is that the patwari and the scribe do not testify to the passing of consideration and that the plaintiff had to fall back “on the dusty files of his account books, which entries are made by himself in his own favour.” Then he goes on to say that this is “the nursery tale of Soloman Grundy.” Having said that and having said that he agrees with the finding of the first Court that there was no consideration, which is a matter of fact, he quotes a number of cases and sets out the facts in them, and then again agrees with the findings of the first Court and adverts to the fact that Girjabai has not been examined. This he does for the purpose of gauging whether her motive in making the adoption was a spiritual one. He concludes with the finding:

“The whole affair is a gross perversion. All actions were engineered to eject the relatives of the deceased Trimbak, from their inheritance by means of a law suit.”

12. I am not able to accept all this as a proper decision on the matters which have to be considered here. There can be no doubt that the sale deed and the exchange deed actually took place. Both are registered documents, and both are admitted by defendant 6. The attack on the point of consideration is made, not by the parties to the deeds who uphold them, but by strangers. They are persons who cannot benefit even if the transaction is set aside, because once the adoption is established the property belongs to defendant 6. He can do what he likes with it, and these others have no interest or concern in it whatever. The law does not allow strangers who have no interest at stake to inter-meddle with other persons' affairs and busy themselves with trying to undo what the parties themselves have done and wish to uphold. It is true defendant 6 challenged the deeds at one time; but he withdrew the challenge in his pleadings and thereafter supported the documents as well as the consideration. It is well established that in such circumstances no stranger can challenge a transaction on the ground of want of consideration. I need only refer to I.L.R (1940) Nag. 94 (’38) 25 A.I.R 1938 Nag. 30 , I.L.R (1940) Nag. 94 , 176 I.C 57 at p. 108, 27 ALL. 2716 and 3 Rang. 71 (’25) 12 A.I.R 1925 Rang. 227 , 3 Rang. 71 , 89 I.C 436 at page 73. But that apart, it would be perverse in this case to hold that there was no consideration. The plaintiff produced his books. They are found by the first Court to have been regularly kept. The entry relating to the payment of Rs. 1000 which formed the consideration is in the books and is signed by the defendant himself. The lower Court holds that this is not proved; but the plaintiff entered the box and swore to the signature. No question was put to him in cross-examination that this was not the defendant's signature. Had that been done the defendant would at once have been put in the box and proved it. There is nothing to show that it was not in fact the defendant's signature. The usual practice at the bar is to accept matters which are not challenged either in the pleadings or in cross-examination as fully established once a person enters the box and swears to it. If the rule were otherwise parties would be obliged to encumber the record with a mass of material which in the result might prove wholly unnecessary. The practice, therefore, is when it is intended to challenge a point which is not specifically challenged in the pleadings to cross-examine to it formally the first time it is raised in a witness's deposition. The other side is then placed upon its guard and is given notice that it must establish the point as fully as it can. When that is not done it means that the point is not challenged and can be accepted. The result is that the appeal succeeds, the decrees of the lower Courts are set aside, and a decree will now be passed in the plaintiff's favour decreeing his claim for possession of the plaint properties with costs in all three Courts.

13. Appeal allowed.