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CASE NO.: Appeal (civil)  6974 of 1996

PETITIONER: Kashi Nath (Dead) through LRs.                           

RESPONDENT: Jaganath

DATE OF JUDGMENT: 05/11/2003

BENCH: DORAISWAMY RAJU & ARIJIT PASAYAT

JUDGMENT: J U D G M E N T With  CIVIL APPEAL No.8596/2003 (Arising Out of S.L.P. (C) No. 14360 of 1998]

ARIJIT PASAYAT, J.

 Leave granted in S.L.P. (C) No. 14360 of 1998.

       Both the appeals being interlinked are disposed of together.

Kashi Nath, the original appellant’s claim of being the adopted  son of Bala Bux and Smt. Nangi having been rejected by the Trial Court  (Court of sub-Judge, Jaipur City), First Appellate Court (Additional  District Judge, Jaipur City) and the Rajasthan High Court by the  impugned judgment in second appeal, the appeal (CA No. 6974 of 1996) has  been filed. The other appeal is an offshoot of the other. The claim is  intricately linked with functioning as a Pujari in the temple of  Thakurji Shri Gopalji in the Jaipur City.  The litigation started  several decades back relating to the present controversy as to adoption.   There have been series of other litigations which are intimately linked  with that basic issue also.  During the pendency of the appeals the  appellant Kashi Nath had died and his legal heirs were impleaded.   

Coming to the genesis of the dispute regarding adoption the same  started when the Kashi Nath the original appellant filed a suit for  declaration that the temple called Thakurji Sri Gopalji belongs to the  entire class of Vaishnava Worshippers and the defendants-respondents  herein who belonged to Khati Community have no exclusive right over it  and further plaintiff is exclusively entitled to manage the temple, to  do sevapuja  and to get offerings made to idols.  The claim was resisted  by the defendants on a number of grounds, one of which was that the  plaintiff was not the adopted son of Bala Bux.  The Trial Court framed  issues and after recording evidence decreed the plaintiff’s suit by  judgment dated 30.5.1964.  Defendants preferred appeal and the learned  District Judge, Jaipur City, set aside the judgment of the Trial Court  by judgment dated 3.6.1969 dismissing the plaintiff’s suit.

       Plaintiff filed an appeal before the High Court which was  registered as SB Civil Second Appeal No. 149/69.  The learned Single  Judge who heard the appeal set aside the First Appellant Court’s  judgment dated 6.3.1969 and remitted the matter back to the said Court  with direction that an amended issue no.4 was to be framed and the

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parties were to be granted opportunity to lead evidence on the amended  issue.  The amended issue reads as follows:

"Whether there was ceremony of giving and  taking at the time of alleged adoption of the  plaintiff to Bala Bux and whether the plaintiff is a  legally and validly adopted son of the Bala Bux?"

The First Appellate Court sent the matter to the Trial Court for  recording evidence on the additional issue and also to remit its  findings.  The Trial Court recorded the evidence led by the parties and  returned the findings on 25.4.75 deciding amended issue no.4 against the  plaintiff, and holding that he was not the adopted son of Bala Bux. The  Additional District Judge after hearing the parties confirmed the said  findings of the Trial Court and ultimately accepted the appeal and  dismissed the suit of the plaintiff by judgment dated 9.12.75.   Thereafter a second appeal was filed before the High Court.  During  pendency of the appeal in the High Court, defendant-respondent no.1  Narain died and as his legal representatives were already on record his  name was deleted. Another defendant-respondent named Smt. Dekha wife of  Kalyan Sahai also died during the pendency of the appeal and her legal  representatives were also on record, therefore, her name was also  deleted from array of respondents.   

Stand of the appellant before the High Court was that the approach  of the Trial Court and the First Appellate Court was erroneous in view  of several judgments/orders passed in different proceedings. It was  clearly established that the appellant was the adopted son of Bala Bux.   The minor variations highlighted by the Trial Court and the First  Appellate Court were but natural, when one considers the position that  the adoption was claimed to have been taken place in 1941. Since the  evidence was recorded after about three decades the Courts’ should not  have insisted on strict proof and slight evidence is sufficient. Stand  of the defendants-respondents was that the question whether one is  adopted son of another is essentially a question of fact and the second  appeal was not maintainable.  The High Court by the impugned judgment  held that pleadings were at variance with the evidence. There was no  evidence whatsoever to support the plaintiff’s case as reflected in the  plaint and on the contrary evidence led by the plaintiff after the  matter was remitted is completely at variance with the assertions made  in the plaint and, therefore, have to per se not be relied at all.   Accordingly, it was held that findings of fact recorded on the basis of  evidence were not open to challenge in the second appeal.   

Learned counsel for the appellant submitted that the approach of  the High Court is unsupportable. There were several orders and judgments  which clearly establish that Kashi Nath was the adopted son of Bala Bux.   The Courts below erred in ignoring those and attaching undue importance  to minor variations. When the documentary evidence was sufficient merely  because the oral evidence was somewhat not in line with the pleadings  that should not have weighed with the courts below.   

Per contra, learned counsel for the respondents submitted that in  this case adoption is claimed to have been made prior to enactment of  Hindu Adoption and Maintenance Act, 1955 (for short the ’Act’). Several  essential ingredients have to be established to come to a conclusion  about the valid adoption and, the evidence fell short of that legal  requirement. Additionally, the evidence and the pleadings were not only  at variance but directly contradictory and self destructive of the case  on the claim of adoption. Therefore, the High Court was justified in  dismissing the second appeal when basic question is whether there was a  adoption, which is nothing but a conclusion arrived as of a fact.  

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Section 5 provides that adoptions are to be regulated in terms of  the provisions contained in Chapter II. Section 6 deals with the  requisites of a valid adoption.  Section 11 prohibits adoption; in case  it is of a son, where the adoptive father or mother by whom the adoption  is made has a Hindu son, son’s son, or son’s son’s son, whether by  legitimate blood relationship or by adoption, living at the time of  adoption.  Prior to the Act under the old Hindu Law, Article 3 provided  as follows:

"Article 3 \026 (1) A male Hindu, who has attained  the age of discretion and is of sound mind, may adopt  a son to himself provided he has no male issue in  existence at the date of the adoption.

(2) A Hindu who is competent to adopt may  authorize either his (i) wife or (ii) widow (except  in Mithila) to adopt a son to himself."

Therefore, prior to the enactment of the Act also adoption of a  son during the lifetime of a male issue was prohibited and the position  continues to be so after the enactment of the Act.  Where a son became  an outcast or renounced Hindu religion, his father became entitled to  adopt another. The position has not changed after enactment of Caste  Disabilities Removal Act (XXI of 1850), as the outcast son does not  retain the religious capacity to perform the obsequial rites.  In case  parties are governed by Mitakshara Law, additionally adoption can be  made if the natural son is a congenital lunatic or an idiot.                  The origin of custom of adoption is lost in antiquity. The ancient  Hindu Law recognized twelve kinds of sons of whom five were adopted.   The five kinds of adopted sons in early times must have been of very  secondary importance, for, on the whole, they were relegated to an  inferior rank in the order of sons.  Out of the five kinds of adopted  sons, only two survive today, namely, the Dattaka form prevalent  throughout India and the Kritrima form confined to Mithila and adjoining  districts.  The primary object of adoption was to gratify the means of  the ancestors by annual offerings and, therefore, it was considered  necessary that the offerer should be as much as possible a reflection of  a real descendant and had to look as much like a real son as possible  and certainly not be one who would never have been a son.  Therefore,  the body of rules was evolved out of a phrase of Saunaka that he must be  ’the reflection of a son’.  The restrictions flowing from this maxim had  the effect of eliminating most of the forms of adoption. (See Hindu Law  by S.V. Gupte, Third Edition at pages 899-900).  The whole law of  Dattaka adoption is evolved from two important texts and a metaphor. The  texts are of Manu and Vasistha, and the metaphor that of Saunaka.  Manu  provided for the identity of an adopted son with the family into which  he was adopted. (See Manu Chapter IX, pages 141-142, as translated by  Sir W. Jones). The object of an adoption is mixed, being religious and  secular.  According to Mayne, the recognition of the institution of  adoption in early times had been more due to secular reasons than to any  religious necessity, and the religious motive was only secondary; but  although the secular motive was dominant, the religious motive was  undeniable.  The religious motive for adoption never altogether excluded  the secular motive.  (See Mayne’s Hindu Law and Usage, 12th Edition, page  329).

As held by this Court in V.T.S. Chandrashekhara Mudaliar v.  Kulandaivelu Mudaliar (AIR 1963 SC 185), substitution of a son for  spiritual reasons is the essence of adoption, and consequent devolution  of property is mere accessory to it; the validity of an adoption has to  be judged by spiritual rather than temporal considerations, and,  devolution of property is only of secondary importance.  

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In Hem Singh and Anr. v. Harnam Singh and Anr. (AIR 1954 SC 581),  it was observed by this Court that under the Hindu Law adoption is  primarily a religious act intended to confer spiritual benefit on the  adopter and some of the rituals have, therefore, been held to be  mandatory, and compliance with them regarded as a condition of the  validity of the adoption.  The first important case on the question of  adoption was decided by the Privy Council in the case of Amarendra  Mansingh v. Sanatan Singh (AIR 1933 PC 155). The Privy Council said:   

"Among the Hindus, a peculiar religious  significance has attached to the son, through  Brahminical influence, although in its origin the  custom of adoption was perhaps purely secular.  The  texts of the Hindus are themselves instinct with this  doctrine of religious significance.  The foundation  of the Brahminical doctrine of adoption is the duty  which every Hindu owes to his ancestors to provide  for the continuance of the line and the solemnization  of the necessary rites."

With these observations it decided the question before it, viz.,  that of setting the limits to the exercise of the power of a widow to  adopt, having regard to the well established doctrine as to the  religious efficacy of son- ship. In fact, the Privy Council in that case  regarded the religious motive as dominant and the secular motive as only  secondary.   

The object is further amplified by certain observations of this  Court.  It has been held that an adoption results in changing the course  of succession, depriving wife and daughters of their rights, and  transferring the properties to comparative strangers or more remote  relations. (See Kishori Lal v. Chaltibai (AIR 1959 SC 504).  Though  undeniably in most of the cases motive is religious, the secular motive  is also dominantly present. We are not concerned much with this  controversy, and as observed by Mayne it is unsafe to embark upon an  enquiry in each case as to whether the motives for a particular adoption  were religious or secular and an intermediate view is possible that  while an adoption may be a proper act, inspired in many cases by  religious motives, Courts are concerned with an adoption, only as the  exercise of a legal right by certain persons. The Privy Council’s  decision in Amerendra’s case (supra), has reiterated the well  established doctrine as to the religious efficacy of son-ship, as the  foundation of adoption.  The emphasis has been on the absence of a male  issue.  An adoption may either be made by a man himself or by his widow  on his behalf with his authority conveyed therefor.  The adoption is to  the male and it is obvious that an unmarried woman cannot adopt, for the  purpose of adoption is to ensure spiritual benefit for a man after his  death and to his ancestors by offering of oblations and rice and  libations of water to them periodically.  Woman having no spiritual  needs to be satisfied, was not allowed to adopt for herself.  But in  either case it is a condition precedent for a valid adoption that he  should be without any male issue living at the time of adoption.   

     From the judgments of the Trial Court, First Appellate Court and  the High Court it is clear that there was no consistency so far as the  claim regarding the adoption is concerned particularly as to who and at  what point of time it was made.  The High Court has taken great pains to  extract the relevant variations to indicate as to how it cut at the very  root of plaintiff’s claim.  As noted by the Privy Council in Siddiqui  Mohammad Shah v. Mst. Saran and Ors. (AIR 1930 PC 57), and  M/s Trojan  and Co. v. RM. N.N. Nagappa Chetiar (AIR 1953 SC 235) when the evidence  is not in line with the pleadings and is at variance with it and as in

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this case in virtual self contradiction, adverse inference has to be  drawn and the evidence cannot be looked into or relied upon.   Additionally, as rightly submitted the conclusion whether there was  adoption is essentially one of fact merely depending upon pure  appreciation of evidence on record. This position has been stated in  several decisions of this Court; e.g., Rajendra Kumar v. Kalyan (dead)  by Lrs. (2000 (8) SCC 99) and Raushan Devi v. Ramji Sah and Ors. (2002  (10) SCC 205). Consequently, no exception could be taken to the well- merited findings concurrently recorded by the courts below, with which  the High Court also rightly declined to interfere on the facts and  circumstances of this case.  

The only result of Civil Appeal No. 6947 of 1996 is dismissal,  which we direct.  Consequentially the connected appeal also stands  dismissed. Costs made easy.