Banwari Lal v. Tirlok Chand & Others

KoSHAL, J.-The facts giving rise to these two cross appeals by special leave may, with advantage, be stated with reference to the following pedigree-table : I SalagRam ML!i Dhar (died issueless in 1925) CHHITARMAL I. Bansh1Dhar (died issueless) I I , Rag Vir Saran (defendal\t) No. 3) I ·Kewal Ram (died issueless in 1937) Gojnd Ram (died issueless in 1952) I I . Narain Dass I · Bhagwan Dass I ' Ram Chander I BaluRam Tirlok IChand (plaintiff) I Ram Nath (defendant No.4) 1. Bhag1rath (defendant No.5) Devi ~ahai (died in (1943) I DamO<lar Dass (defendant No.6) . I P1arey Lal (defendant No.2) Jagannath =Smt. Chhoti (died · (died issueless issueless ' in 1940) in 1955) I Gopi Nath Smt. Barfi (daughter) H The litigation between the parties started with suit No. 1912 of 1958 instituted by Tirlok Chand for partition of properties detailed in schedules A, B and C forming part of the plaint. His case was that , -; I --<.._ ·~. -L BANWARI LAL v. TIRLOKCHAND (Koshal, J,) 1001 ' · the property described in schedule A had been acquired by hi& great- :grand-father Chhitar Mal, that the property detailed in schedule B was jointly acquired by Salag Ram's sons Jagannath and Govin:d Ram, the two of whom constituted a joint Hindu family, and that the pro­ perty specified in schedule C had once belonged exclusively to Jagan­ nath, son of Salag Ram and that it was from him that it had <lescended to his widow Smt. Chhoti. Apart from defendants Nos. 2 to 6 whose names appear in the pedi­ gree-table, Banwari Lal [who is the appellant before us in Civil Appeal No. 1742(N) of 1969] was arrayed as defendant No. 1 and he has been the real contesting defendant whose claim was based on his adoption by Govind Ram, grandson of Chhitar Mal and on two regis­ tered wills, both dated the 25th of September, 1950,. purporting to 'have been -executed by Govind Ram and Smt. Chhoti respectively. He claimed that the two testators had bequeathed their entire property to him, that the projierty covered by schedule A was acquired not by · Chhitar Mal but by Salag Ram and that the one embraced by schednle C had been purchased by Smt. Chhoti with her stridhana and was ·never the property of her husband Jagannath. He therefore claimed to be entitled to all the properties in suit exclusively fer himself, it being common ground between the parties that those properties were the subject-matter of the two wills. The plantifI denied the adoption set up by di;fendant No. 1 and ·challenged the. two wills. as forgeries. The trial court a1,1d the first appellate court found that t11e property ·covered by schedule A had been acquired not by Chhitar Mal but by :bis sou Salag Ram. There was no contest in refation to the property -0mbraced by schedule B which was therefore treated to have been ·acquired jointly by Goviiid Ram and Jagannath as part of their joint Hindu family assets. Ini relation to the property detailed in schedule · C, the trial Court 'held that it had been acquired by Jagannath but the :finding was reversed by the first appellate court which found that the ·acquisition was made by Smt. Chhoti with funds of her own, her husband Jagannath having no interest therein. On behalf of defendant No. 1 no avidence was led to prove that. he had been given or taken in adoption. The trial court therefore held 11 that the adoption had not been proved. In the will of Govind Ram however, there was a recital that defendant No. 1 was his adopted son 11 ·and this recital was considered by the first appellate court to be sufli­ ·cient to prove the adoption. Both the will~ were held to be gennine 1002 SUPREME COU!tT Rl!PfjlllTS (1980] 1 S.C.R. A f and legally valid and the suit was therefore dismissed by the trial court· and the first appellate court in toto. In second appeal the High Court upheld all the findings of fact arrived it by tl!.e first appellate court except the one relating to adop- · tion. The High Court was of the opinion that the recital in the will of Govind Ram about defendant No. 1 being his adopted soo was not sufficient to prove the adoption which therefore was held not to have been established. It was further held by the High Court that a half . share in the property specified in schedules A and B having descended from Jagannath to Smt. Chhoti as a life-tenant only, she was not com­ petent to will it away and that the plaintiff, along with other members­ of the family, was entitled to succeed to that half share. It was vehemently coµtended before the High Court that even if the wills be taken to be genuine, they would operate only if defendant No. 1 was shown to have been validly adopted by Govind Ram· because both Govind Ram and Smt. Chhoti had described him as;. Govind Ram's adopted sou aud must therefore be presumed to have· executed the wills in favour of defendant No. 1 by reason of his being the adopted son of Govind Ram. The contention was repelled by the High Court (as it had also been by the trial court) on the ground that the mention of defendant No. 1 as the adopted son of Govind Ram in each of the two wills had been made merely as a description of th<t· devisee and not as a motivation for the execution of either will. Sup­ port was found for this view from Ranganathan Chattiar and Another· v. Periskaruppan and Another.(') In the result the High Court accepted the appeal of the plaintiff in part, set aside the dismissal of the suit and remitted t11e case to the· F trial court for declaring the shares of the parties in the property which· descended to Smt. Chhoti from her husband, in the light of its (the High Court's) judgment and for partition of the property accordingly· thereafter. 2. Both the contesting parties feel aggrieved by the judgment of the ft High Court. While defendant No. 1 claims in Civil Appeal No. 1742 of 1969 the entire· property covered by schedules A, B and C, the· plaintiff has filed a cross appeal (Civil Appeal No. 1743 of 1969) seeking to defeat in toto the claim of defendant No. 1. 3. We have heard learned counsel for the parties at length. In so far as the findings of fact are concerned they are not open to challenge: before us. The first question which learned counsel for the plaintiffs; (1) A.I.R. 1957 s.c 815 .. ... BANWARI LAL v. TJRLOKCHAND (Kamal, J.) 1003 nas re-opened befure us is whether the· two wills were rightly held to be operative i~ favour of defendant No. 1 inspite of the fact that he was found not to have established his character as an adopted son wl;lich was the description given to him in both the wills. To this question also we think the High Court gave the correct answer. In this conne.ction reference may be made to the relevant 'Part of Govind Ram's will and the same is extracted below: "Shri Banwarilal is the adopted son and heir of the. executant. Shrimati Chhoti is the widow of Jagannath Prasad, resident of Pilkhuwa, Pargamt Dasna, Tahsi! Ghazia­ bad. Both the persons Jive along with the executant and render all due service to the executant. Therefore, I •make the following will : That after the death of the executant all my estate, movable and immovable, with all other goods and household property along with Dharamshala No. 1I60 and one-storeyed shop No. 1/57 bounded as given below shall be owned by Shrimati Chhoti widow of Jagannath Prasad, occupation shopkeeper, resident of Pilkhuwa, wlio shall have no right to sell the estate. She shall have the right to spend for the Dharamshala the income of shop No. 1/57 connected with the Dharamshala. After the cleath of Smt. Chhoti, Banwarilal, adopted son and heir of the executant, shall be the owner ...... " Interpreting this document and considering the surrounding .circums­ tances of the case, the trial court found that the motive for the execu­ tion of the will was not merely the recognition by the testator of his relationship through adoption with the devisee but mainly the existence of feelings of love aud affection for him. It was found as a fact that Banwari Lal was living with Govind Ram and Smt. CW10ti, that he had served them during their illness and th.at he was altectionately attached to them so that at the time when the wills were executed there was no• 6ne nearer or dearer to Govind Ram and Smt. Chhoti than Banwari Lal. In this view of the matter, the failure to establish the stated relationship is not decisive of the point under consid·~ration, and as remarked by the High Court, it appears that the testator made the will not for the reason that he had in fact and lawfully adopted Banwari Lal but for the reason that he treated Banwari Lal as an; adopted son and was moved ·really by the service which the latter had rendered to him. The relationship mentioned in the will was mercly a descriptlon of the devisee as understood by the testator who executed tlie win in favour of the devisee not because . of the relationship! c· I G. A brought about by the adoption but by ·reason of feelings of affection ' which the de vi see had earned by his association and assistance. 4. The only other noticeable· point raised on behalf of the plain- tiff was that the will executed by Smt. Chhoti must be held to be wholly inoperative-in so far as properties detained· in schedules A and B are B concerned. There is no foree in that contention either. One half of the properties mentioned in those two schedules had vested in Smt. Chhoti undet the will of Govind' Ram which itself declared that Smt. Chhoti would hold them merely as a life-tenant and that thereafter they would devolve on defendant No. 1. In devising those proper­ ties to defendant No. 1 Smt. Chhoti did nothing more than carry out C the behest of her own testator, which behest was good in law and would have been effective even if Smt. Chhoti had made no will JI in favour of defendant No. 1 in respect of the properties acquired by )-'- her under Govind Ram's will. 5. On behalf of defendant No. J the only submission made was D that the two wills must be given effect to not· only with regard to the properties received by Smt. Chhoti from Govind Ram but alse in res­ pect of those which devol·:ed on her as a successor to her husband Jagannath. This submission is also without substance.· Jagannath died in 1940 when Smt. Chhoti came into his property on the usual life-tenure without any right of a alienation (except for necessity) or E of devise. To the extent that she overstepped her rights in devising Jagannath's property the will transgressed the law and has been rightly held to be inoperative, the result being that her reversioners and not her devisee would succeed to Jagannath's share in the properties covered by schedules A and B. The situation would certainly have been diffe­ rent if the adoption had been proved; for, ill that oose, defendant I!' No. 1 would have succeeded as the .sole revensianer to the estate left by Smt. Chhoti, being her husband's brother's son and therefore his nearest and sole heir. And that is why a contention was raised on behalf of defenc)ant No. 1 that a valid adoption had been proved. and that the finding to the contrary arrived at by two of the courts below was G unsupportable. Reference in this connection was made to the recital in the will executed by Govind Ram about defendant No. 1 being the adopted son of the devisor and to the oral evidence of Raj Pal, DW-2 who attested that will and deposed that defendant No. 1 had been adopted by the testator. These two pieces of evidence were considered by the trial court as well as the High Court, both of whom regarded B the material as insufficient to hold that a valid adoption was proved. The finding in relation to the adoption is a finding of fact which we see no reason to interfere with in the circumstances of the case. The " '. j( BANWARI LAL v. TIRLOKCHAND (Koshal, !.) 1005 adoption is alleged to have taken place within about a decade imme- A. diate!y preceding the suit between the parties so that evidence of wit­ nesses who were present at the actual adoption and had seen the 'giving and taking' ~ould normally have been available. However, no attempt was made to produce any such witness nor to explain why no such witness was forthcoming. Different considerations may have prevailed if proof of adoption was required to be submitted to court 8 · after a very long period of its having taken place, which is not the case here. The statement made by the testator in the will about the adop- tion is certainly a piece of admissible evidence as observed in Chandreshwar Prasad Narain' Singh v. Bisheshwar Pratap Narain Singh(1) cited by learned counsel for defendant No. 1 but there is no C rule of law or prudence laying down the principle that such a state­ ment must be regarded as conclusive, and this was also the view taken in that case. And the burden of proof of adoption was heavy on the defendant. In this connection we may refer to the following passage in Article 512 of Mulla's Hindu Law (14th edition) : " ..... But the evidence in support of an adoption must be sufficient to satisfy the very grave and serious onus that rests upon any person who seeks to displace the natural succession by alleging an adoption. That onus is particularly heavy where the adoption is made a Jong time after the date of the alleged authority to adopt .... " It is true, as pointed out by Mulla in a later passage occurring in the same article that when there is a lapse of a very long period between the adoption and its being questioned, every allowance for the absence of evidence to prove the factum -0f adoption must be favourably entertained; but then that is not the situation here as we have already pointed out. We are therefore one with the High Court in holding that on the evidence adduced, defendant No. 1 has not been successful in establishing the alleged adoption. 6. In the result both the appeals fail and are dismissed with no order as to costs. P.B.R. Appeals dismissed. (1) A.l.R. 1927 Patna 61. ))