25 November 1982
Supreme Court


Bench: PATHAK,R.S.
Case number: Appeal Civil 2376 of 1969








CITATION:  1983 AIR  114            1983 SCR  (1) 851  1983 SCC  (1)  35        1982 SCALE  (2)1083

ACT:      Evidence-Weight to  be given  to finding  of  facts  by trial  court-Principle   governing  re-appraisal   of   oral evidence by appellate court.      Evidence-of witnesses  holding position of relationship with parties - Court should examine its probative value with reference to entire mosaic of facts appearing on record.      Adoption -  Fact of  adoption to  be proved in the same way as  any other  fact-Proof of  physical act of giving and taking essential.      Joint Hindu  Family-Partition-Notice to  co-sharers  of intention to separate essential.

HEADNOTE:      Jagannathdas and  his wife  Premwati had  no  children. Premwati suffered  from tuberculosis  and died  on September 24, 1951. Thereafter Jagannathdas created a trust in respect of his  estate which  comprised of properties falling to his share in  a family  partition. The  appellant filed  a  suit claiming that  he  had  been  adopted  by  Jagannathdas  and Premwati as  their son  on September 24,1951, that the trust was void  and that  he was  entitled to  a half share in the estate. The  trial court decreed the suit after finding that the appellant  had in  fact been adopted by Jagannathdas and Premwati and that the adoption was valid.      On appeal  by the  trustees the High Court reversed the finding of  tho trial  court taking  a different view of the evidence on record and dismissed the suit.      Allowing the  appeal against  the  order  of  the  High Court, ^      HELD: In  an appeal  against a trial court decree, when the appellate  court considers  an  issue  turning  on  oral evidence it  must bear  in mind  that it  does not enjoy the advantage which  the trial court had in having the witnesses before it  and of  observing the  manner in  which they gave their testimony.  When there  is a conflict of oral evidence on any  matter in  issue and  its resolution  turns upon the credibility of  the witnesses,  the general rule is that the appellate court  should permit the findings of fact rendered by the trial court to prevail unless it clearly appears that some special  feature about  the evidence  of  a  particular



witness has  escaped the  notice of the trial court or there is a  sufficient balance  of improbability  to displace  its opinion as  to where  the credibility lies. The principle is one of  practice and  governs tho  weight to  be given  to a finding of fact by the trial court. 852 There is, of course, no doubt that as a matter of law if the appraisal of  the evidence by the trial court suffers from a material irregularity  or is  based on inadmissible evidence or on  a misreading  of the  evidence or  on conjectures and surmises the  appellate court  is entitled to interfere with the finding of fact.                                           [856-D-E; 857 B-C]      W.C. Macdonald  v. Fred  Latimer, A.I.R.  1929 P.C. 15; Watt v.  Thomas, L.R.  1947 A.C.  484; Sara Veeraswami alias Sara Veerraju  v Talluri  Narayya (deceased) and Ors. A.I.R. 1949 P.C.  32; Sarju  Parshad  v.  Raja  Jwaleshwari  Pratap Narain Singh  and Ors.,  [1950] S.C.R.  781; and The Asiatic Steam Navigation  Co. Ltd  v. Sub-Lt.  Arabinda Chakravarti, [1959] Supp. 1 S.C.R. 979 referred to.      In the  instant case the question whether the appellant had in  fact been  adopted by  Jagannathdas and Premwati had been determined  by the trial court essentially on tho basis of oral  testimony and  reference had  been made  to  a  few documents only  in supplementation of the oral evidence. The judgment of  the trial court showed that it had analysed tho testimony of  each material  witness  and  in  reaching  its conclusions on  the issues  of fact  it had  relied in  some instances upon  its own appraisal of the manner in which the witnesses present before it had rendered their testimony and had weighed  with great  care the  probative  value  of  the evidence in the context of established fact and probability. But the High Court had, in disagreeing with the trial court, adopted an  erroneous approach.  It proceeded  to judge  the credibility of  the witnesses mainly with reference to their relationship  with  the  parties  without  placing  adequate weight on  the nature of the evidence and the probability of its truth  in the  context of the surrounding circumstances. It rejected  the  testimony  of  the  appellant’s  witnesses substantially on  the ground  that they  were related to the appellant. This  cannot, by  itself constitute  a sufficient basis for discrediting the witnesses. When a witness holds a position of  relationship favouring  the party producing him or of  possible prejudice  against’ the contesting party, it is incumbent  on the  court to  exercise appropriate caution when appraising  his evidence  and to  examine its probative value with reference to the entire mosaic of facts appearing from the  record. It  is not open to the court to reject the evidence  without  anything  more  on  the  mere  ground  of relationship or favour of possible prejudice. The High Court should also  have reminded  itself that  the  witnesses  had given their  evidence before  the trial  court which had the opportunity of seeing their demeanour in the witness box and tho appreciation of their evidence by the trial court bad to be given due consideration in the light of that fact. [856C; 857-D; 861-E-G; 862-A-B]      (b) It  is well  settled that  a person  who  seeks  to displace the  natural’ succession to property by alleging an adoption must  discharge the  burden that  lies upon  him by proof of  the factum  of adoption  ar d  its validity. 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. Nontheless the  fact of  adoption must be proved in tho same way as any other fact. [862-C-D]



    A. Ragavamma  and Anr. v. A. Chanchamma and Anr. A.I.R. 1964 S.C.  136 and.  Kishori Lal v. Chaltibai [1959] Supp. 1 S.C.R. 698 referred to. 853      (c) 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. In some cases to complete the adoption a "datta homam" has been considered necessary  but in  the  case  of  the  twice-born classes no  such ceremony  is  needed  if  the  adopted  boy belongs to  the same  gotra as  the adoptive father. [862-E; 863-B]      Shoshinath v  Krishnasunder (1881)  L.R.  7  I.A.  250; Lakshman Singh  v Smt. Rupkanwar [1962] 1 S.C.R. 477 and Bal Gangadhar Tilak  v. Shrinivas Pandit (1915) L.R. 42 I.A. 135 referred to.      In the  instant case the High Court, relying on certain observations made  by  the  Privy  Council  in  Susroogan  v Sabitra, held  that the  trial court had not scrutinised the evidence relating  to the  performance of  the  ceremony  of giving and  talking and  also did not have due regard to the probabilities and,  on that  basis, proceeded  to reappraise the evidence  in elaborate  detail. When  the Privy  Council made 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. The High Court applied  that standard  to  a  case  which  was  quite different. The  issue here was whether the adoption had been effected in  circumstances which plainly did not permit time for making  acknowledgements, observing elaborate ceremonies and giving notices generally. According to both the parties, Premwati was seriously 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.  Even  upon  the  approach adopted by  the High  Court its findings are vitiated by its failure to  consider material  evidence on record and by its reaching  conclusions   not  sustainable   in  reason.   The appellant has  pleaded the  custom of his community that the act of giving and taking suffices to effect a valid adoption and nothing  has been  shown to  indicate that  the  further ceremony of  ’datta homam’  was necessary [863-D-H; 864-A-D; 864-F; 863-B]      Sutroogan v. Sabitra, (1866) 5 W.R. 109 referred to      (d) Separation from a Joint Hindu Family is effected by a clear  and unequivocal  intimation on the part of a member of the  Family to  his co-sharers  of his  desire  to  sever himself from  the Family.  A mere uncommunicated declaration amounts to  no more  than merely  harbouring an intention to separate. A  valid’ partition  requires notice  to  the  co- sharers of the intention to separate. [869-C-E]      Girja Bai  v. Sadashiv  Dhundiraj, [1960]  43 I.A, 151; Bal Krishan and Ors. v. Ram Krishan and Ors., [1931] 58 I.A. 220; A  Raghavamma and  Anr. v.  A Chenchamma and Anr A.I.R. 1964 S.C.  136; Puttrangamma  and Ors., v. M.S. Ranganna and Ors. A.I.R.  1968 S.C.  1018 and Kalyani (dead) by L. Rs. v. Narayanan and Ors., A.I.R. 1980 S.C. 1173 referred to. 854



    In  the   instant  case  the  trust  deed  contained  a declaration on  the part of Jagannathdas of his intention to separate in the event of the adoption deed being found valid by the  court but  no notice of such intention was given nor could be  inferred from  Jagannathdas to the appellant. Both the trial  court and  the High  Court rightly  rejected  the contention that  the declaration in the trust deed must R be regarded as effecting partition. [869-E; 869-A]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: CIVIL Appeal No. 2376 of 1969.      From the  judgment and  order dated the 30th September, 1963 of  the Madhya  Pradesh High  Court in  F.A. No.  82 of 1961.      B.D. Bal,  Rameshwar Nath  and N.  Nagarathnam for  the Appellant.      S.B.Bhasme, S.S.Khanduja for Respondents 1 (a) to 1(c).      S.S. Khanduja, for Respondent No. 1 (d).      M.N. Phadke,  M.M Sapre  and J.S. Sinha for Respondents Nos. 3 to 9 and 11.      The Judgment of the Court was delivered by      PATHAK,  J.   This  is   a  plaintiff’s   appeal  on  a certificate granted under subclass (a) of clause (1) of Art. 133 of the Constitution by the High Court of Madhya Pradesh.      The appellant,  who belongs  to a  prominent family  of Jabalpur, instituted a suit, out of which the present appeal arises,  for  partition  and  separate  possession  and  for rendition of  accounts. The properties in suit comprise most of the  estate falling to the share of one Seth Jagannathdas on a family partition of October 19, 1939. 855      The genealogy of the family may be set forth:                                     Diwan Bahadur Ballabhdas                                           (died in 1925) Mannoolal       Kanhaiyalal     Jamnadas         Mankuarbai (died in 1916)  (died in 1923)  (died in 1939) M. Narayanibai    (Respondent)   Narsinghdas                   (Respondent) Jagannathdas   Balkrishandas   Goverdhandas Madhu-   Tribhu- M.Premwati                                  sudandas wandas                                           (appellant) 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, that the trust was void and that he  was entitled  to half the estate. Jagannathdas died on October  7, 1957  during the pendency of the suit, and in consequence the  appellant claimed  a F  314th share  of the estate,  with   the  remaining   1/4th  being   conceded  to Narayanibai the mother of Jagannathdas.      The suit  was decreed  by the  trial court on September



27, 1961  and a  preliminary decree was passed declaring the appellant entitled  to the  share  claimed  by  him  and  to partition and  separate possession  of the  properties.  The trust was declared invalid and the trustees, in consequence, were declared  trespassers and  liable to render accounts to the appellant.      An appeal by the trustees was allowed by the High Court by its  judgment and decree dated September 30, 1967 and the suit has been dismissed, 856      Several issues  were  tried  by  the  trial  court  and considered on appeal by the High Court, but the most crucial and decisive  issue, and  which constitutes  the core of the controversy between  the parties,  is whether  the appellant can be said to be the adopted son of Jagannathdas. The trial court found  that the  appellant  was  in  fact  adopted  by Jagannathdas and Premwati on September 24, 1951 and that the adoption was valid. The High Court has reversed the finding, taking a  different view  altogether of  the evidence on the record.      The question  whether the appellant was in fact adopted by Jagannathdas and Premwati has been determined essentially on the  basis of oral testimony, and reference has been made to a  few documents  only in  supplementation  of  the  oral evidence. At  this stage,  it would be right to refer to the general principle  that, in  an appeal against a trial court decree, when  the appellate court considers an issue turning on oral evidence it must bear in mind that it does not enjoy the advantage  which the  trial  court  had  in  having  the witnesses before  it and  of observing  the manner  in which they gave  their testimony. When there is a conflict of oral evidence on  any matter  in issue  and its  resolution turns upon the  credibility of  the witnesses, the general rule is that the  appellate court should permit the findings of fact rendered by  the trial  court to  prevail unless  it clearly appears that  some special  feature about  the evidence of a particular witness has escaped the notice of the trial court or  there  is  a  sufficient  balance  of  improbability  to displace its  opinion 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 857 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  proceeded correctly  in the  evaluation  of  the evidence before  it when deciding to reverse the findings of the trial  court. The  principle  is  one  of  practice  and governs the  weight to  be given to a finding of fact by the trial court.  There is, of course, no doubt that as a matter



of law  if the  appraisal of the evidence by the trial court suffers  from   a  material  irregularity  or  is  based  on inadmissible evidence  or on a misreading of the evidence or on conjectures  and surmises the appellate court is entitled to interfere  with the  finding of  fact. Our  attention has been  drawn   by  the   respondents  to  The  Asiatic  Steam Navigation Co. Ltd. v. Sub. Lt. Arabindra Chakravarti(3) but nothing said  therein detracts,  in our  opinion,  from  the validity of the proposition enunciated here.      The judgment  of the trial court shows that it analysed the testimony  of each  material witness and in reaching its conclusions  on  the  issues  of  fact  it  relied  in  some instances upon  its own appraisal of the manner in which the witnesses present  before it  rendered their  testimony  and weighed with  great care the probative value of the evidence in the  context of  established fact and probability. On the central issue  whether the  appellant had  been  adopted  by Jagannathdas and  Premwati it  commenced logically  with  an examination of  the circumstances in which an adoption could be envisaged.  Jagannathdas and Premwati were without issue. The wife  was suffering from tuberculosis for about eight to ten years  without any  possibility of  improvement and  her health was  fast deteriorating.  There was  no hope that she would bear  a child.  Jagannathdas admittedly belonged to an old respected  family  steeped  in  tradition  and  orthodox belief. He  was the  owner of  considerable property. It was natural that  Jagannathdas and  Premwati should conceive the need for adopting a son. Jagannathdas was on the evidence, a sickly man  of weak  mind and  of weak  Will and  of  little education,  and   in  the   administration  of  his  affairs Mankuarbai, his  father’s sister, and Narsinghdas, his uncle s son,  played a  prominent role.  Premwati was aware of her husband’s limitations and handicaps and quite understandably was anxious that a son should be adopted. The 858 husband and  wife were  devoted to  each other,  and all the circumstances point  to  the  conclusion  that  if  Premwati desired the  adoption of a son Jagannathdas would readily go along 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  stayed there for about two months with Narayanibai it was decided to send for Madhusudandas and  have him  stay with them for some time in order to  determine whether, by his deportment and behaviour and the  manner of  his living,  he was  a suitable  boy for adoption. The trial court found that the appellant did go to Panchmarhi and stayed with Premwati for some days. The trial



court has  also analysed the testimony of witnesses deposing to the  contrary, and  has given  good reason for discarding that testimony.  It inclined  to the view that the appellant had found  favour with  Jagannathdas and  Premwati and  that they decided to adopt him.      The next  question considered  by the  trail court  was whether the  appellant was  in fact adopted on September 24, 1951. Consider  able evidence  was led on both sides to show the physical  and mental  condition of Premwati on that day, it being  the case  of the  appellant that  she was  in  fit condition to  effect the  adoption while  the  case  of  the contesting respondents was that her condition was so serious that it forbade any such possibility. There is no doubt that her condition  was not  good, having  suffered deterioration during the  preceding four  days. The  appellant produced  a number of witnesses to prove that as she had grown very weak she requested that the adoption 859 take  place   that  very  day  and  that  she  was  able  to participate in  the ceremony  of  adoption.  The  contesting respondents on the other hand, led evidence to show that she had slipped  into  a  ’  cyanosed  state"  and  was  totally incapable of  any physical  and mental  activity. The  trial court devoted  detailed attention to the issue and carefully sifted the  evidence adduced  in support  of the  allegation that Premwati  was unable to speak and "completely cyanosed" on September 24, 1951, and after weighing it in the light of incontrovertible or  admitted fact  it found  the allegation untrue. In  the first  place, it  observed that  the written statement  filed   by  Narsinghdas   did  not  describe  her specifically  as  being  "cyanosed  ’.  It  found  that  the evidence of  Dr. Choubey,  who  deposed  that  Premwati  was unable to  respond,  could  not  be  believed,  nor  was  it possible to  rely on  the nurse  Rachel, whose  name was not mentioned in  the original list of fifty-six witnesses filed by Narsinghdas, and who stated that she had been told by Dr. Choubey that  Premwati was  in  an  unconscious  state.  The entire 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 witnesses who were  members of  the branches  of the parent family and who testified to the adoption and to the physical and mental condition of Premwati at the time. The case of the appellant was supported  by oral  and documentary  material evidencing that while  he had  attended college  in the morning on that day he  did not  do so  in the  afternoon,  thereby  leading credence to the appellant’s case that on coming to know



860 from  Premwati   that  she  intended  the  adoption  of  the appellant that  very day  Sunderbai, the appellant’s mother, sent for him at mid-day from his college.      The trial  court then  considered  the  matter  of  the execution of  an adoption  deed by Jagannathdas and Premwati as evidence  of the  adoption.  It  took  into  account  the circumstances  in   which  the   document   was   considered necessary, its  execution and attestation, and how it was at first entrusted  to Seth  Govinddas  and  then  returned  to Jagannathdas. It  was not  disputed that such a document was in fact signed by Jagannathdas and Premwati on September 24, 1951,  and   the  trial  court  repelled  the  case  of  the respondents that  Jagannathdas  was  compelled  to  sign  it without and knowledge of its contents and that Premwati also did so  in ignorance  of what  it set  forth. The  fact that Jagannathdas was  aware of  the nature  of the  document  is fully established by his reference to it as an adoption deed when he  wrote out  the receipt  given to  Seth Govinddas in envidence of  its return.  The trial  court also  noted that Jagannathdas disowned  the adoption  and the  document later only when  the circumstance  around him  changed as his wife approached  her  end  and  the  over-powering  influence  of Narsinghdas began to take hold over his will.      The  adoption  deed  contains  certain  recitals  which appear to  militate against  the appellant’s case. It refers to ceremonies,  such as  the performance  of a  "havan",  to which none  of the appellant’s witnesses have testified. The respondents contended  from this  that Do  adoption had been effected at  all. The  trial court  examined  this  apparent inconsistency  and   explained  it  with  reference  to  the peculiar  circumstances  in  which  the  document  had  been prepared.      On the  fact of  adoption the  trial court found itself fortified by  the contents of a letter dated August 21, 1957 written by  Jagannathdas to  his mother  stating that he had accepted the appellant as his son. The original document had 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. 861      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  of the  families of the appellant and Jagannathdas, who  belonged to  Rajasthan, did not extend to more than  the ceremony  of giving  and taking, and that the ceremony of  ’dattak homam"  was not necessary to effectuate the adoption  of the appellant. Accordingly, the trial court



took the view that the adoption was valid in law.      The High  Court disagreed with the trial court and held that the  adoption had not been established. In doing so, it adopted  an   approach  which,   to  our  mind,  is  plainly erroneous. It  proceeded to  judge the  credibility  of  the witnesses mainly  with reference  to their relationship with the parties without placing adequate weight on the nature of the evidence and the probability of its truth in the context of the  surrounding circumstances. It rejected the testimony of the  appellant’s witnesses  substantially on  the  ground that they  were related  to the  appellant or  out of favour with Narsinghdas. This consideration, in our opinion, cannot by itself constitute a sufficient basis for discrediting the witnesses. We  think the  proper rule  to  be  that  when  a witness holds a position of relationship favouring the party producing  him   or  of   possible  prejudice   against  the contesting party,  it is  incumbent on the court to exercise appropriate caution  when appraising  his  evidence  and  to examine its  probative value  with reference  to the  entire mosaic of facts appearing from the record. It is not open to the court  to reject  the evidence  without anything more on the mere  ground  of  relationship  or  favour  or  possible prejudice. The judgment under appeal indicates that the High Court commenced  with that mistaken approach, and we see its influence working  throughout its appraisal of the testimony of the  several witnesses.  It is only logical that with its approach so oriented even the most 862 significant material adduced by the appellant should, in the eyes of  the High  Court, take  on a  negative hue. The High Court should  also have  reminded  itself  that  these  same witnesses had  given their  evidence before the trial court, which had  the opportunity  of seeing their demeanour in the witness box,  and the  appreciation of their evidence by the trial court  should have been given due consideration in the light of that fact.      It is  well settled that a person who seeks to displace the natural  succession to  property by alleging an adoption must discharge the burden that lies 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  achieve this  object it  is essential to      have  a   formal  ceremony.   No  particular   form  is      prescribed for  the ceremony, but the law requires that      the natural parent shall hand over the adoptive boy and      the adoptive  parent shall  receive him.  The nature of



    the ceremony may vary depending upon the 863      circumstances of  each case. But a ceremony there shall      be, and giving and taking shall be part of it." In some  cases, to complete the adoption a "datta homam" has been considered necessary, but in the case of the twice-born classes no  such ceremony  is  needed  if  the  adopted  boy belongs to  the same  gotra  as  the  adoptive  father.  Bal Gangadhar Tilak v. Shriniwas Pandit.(1) In the present case, the appellant  has pleaded  the custom of his community that the act  of giving  and taking  suffices to  effect a  valid adoption, and  nothing has been shown to us to indicate that the further ceremony of ’datta homam" was necessary.      Apparently, for this reason the parties concentrated in the main  before the  High Court  on the limited controversy whether in  fact the  ceremony of giving and taking had been performed.  In   the  course   of   adjudicating   on   this controversy, the  High Court referred to the observations of the Privy Council in Sutroogan v, Sabitra(2):           "Although neither written acknowledgments, nor the      performance of  any religious ceremonial, are essential      to the  validity of adoptions, such acknowledgments are      usually  given,   and  such  ceremonies  observed,  and      notices given  of the  times when adoptions are to take      place, in  all families  of distinction,  as  those  of      ‘Zamindars’ opulent  Brahmins, that wherever these have      been omitted,  it behoves  this Court  to  regard  with      extreme suspicion  the proof  offered in  support of an      adoption. I  would say,  that in  no  case  should  the      rights  of   wives  and  daughters  be  transferred  to      strangers, or  more remote  relatives, unless the proof      of adoption,  by which  the transfer  is  effected,  be      proved by  evidence free  from all  suspicion of fraud,      and so  consistent and  probable as to give no occasion      for doubt of its truth." and it  proceeded to  hold that  the  trial  court  had  not scrutinised the  evidence relating to the performance of the ceremony of giving and taking and did not have due regard to the probabilities.  On that  basis the High Court rested its justification for  re-appraising the  evidence in  elaborate detail. Now, when the Privy Council made 864 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  findings  which  are accordingly vitiated. On the contrary we find that the trial court examined  the evidence relating to the actual adoption



with great  care and  pointed out  that as  Jagannathdas had accepted Premwati’s  suggestion to  have the  adoption  that very day and during her lifetime the issue of invitations to relations and friends, the observing of elaborate ceremonies and the  taking of a photograph were out of the question and that only  the bare essentials of the ceremony of giving and taking were possible.      Even upon  the approach  adopted by  the High Court, we find its  findings  vitiated  by  its  failure  to  consider material evidence on the record and its reaching conclusions not substainable in reason. We have already pointed out that the allegation  that  Premwati  was  unconscious  and  in  a cyanosed state  on September  24,  1951  is  belied  by  her undisputed signature  affixed on  the adoption  deed on that day. The  High Court omitted to take this aspect of the case into account  when it  allowed the  evidence of Dr. Choubey, the nurse Rachel and others to find favour with it. The High Court also failed to appreciate that in the application sent by Jagannathdas  to the Deputy Commissioner and the District Superintendent of  Police on September 27, 1951 Jagannathdas had stated  that Premwati’s  illness took  a serious turn at about 5  O’clock in  the afternoon on September 24, 1951 and it was from that hour that her condition 865 became progressively  worse until  she expired  at  about  9 O’clock the same evening. This document has been produced by the contesting  respondents. It  does not  detract from  the case of  the appellant  that Premwati’s condition was not so precarious as  to  forbid  her  from  participating  in  the ceremony of adoption at about 3 O’clock in the afternoon. On the  contrary,  had  Premwati  been  unconscious  and  in  a cyanosed  state  throughout  the  day,  as  alleged  by  the contesting respondents,  the statement  made by Jagannathdas in his  letter of September 27, 1951 would have been phrased differently.      Ramsarandas deposed that he saw Premwati in the morning of September  24,  1951  and  she  insisted  on  having  the adoption that  very day  because although  "there was  still time for the date of adoption" her health was deteriorating. The High Court declined to believe Ramsarandas because there was no evidence that any date had been fixed earlier for the adoption. 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 that  it had  been understood for quite some time’  that Jagannathdas  and Premwati  would adopt the appellant and  it was  natural to  expect that on knowing of



Premwati’s serious condition Sunderbai should visit Premwati and at  her instance  send for  her son  for the  purpose of adoption. Further, we have no doubt in our 866 mind in  view of  the oral and documentary evidence that the appellant attended  college up  to the lunch recess and left it thereafter.  The High  Court has  rejected that  material without good reason.      The High Court has taken the view that Jagannathdas was IR averse  to adopting  the appellant,  and it has relied on the evidence of Motilal, a witness of the respondents. It is clear from  the evidence  that at first Gopaldas, the son of Narsinghdas was  considered for  adoption and thereafter the appellant was  kept in  view for  that purpose. There can be absolutely no doubt That Premwati was anxious to adopt a son during her  lifetime and  was actively involved in finding a suitable boy  for that  purpose. It is impossible to believe that Jagannathdas,  her husband,  was not  privy to all that was going  on and was not in agreement with Premwati in what she intended. The evidence demonstrates that he was a loving and  devoted   husband  and   greatly  concerned   with  the gratification of  his wife’s  wishes. His  attitude  to  the appellant’s adoption  changed only  as Premwati’s life ebbed away,  and   the  influence   of  Narsinghdas,  without  any significant force  to counter  it, began  to spread its pall over him.  We must remember that the real possibility of the adoption of his son Gopaldas, at an earlier stage, must have greatly appealed  to Narsinghdas  as it  would have extended his domain  over the  estate of Jagannathdas. When, however, that  possibility   died  and   it   became   evident   that Jagannathdas and Premwati would adopt the appellant instead, his attitude  towards the intended adoption would inevitably have been  hostile. It  must not  be forgotten  that he had. been intimately  associated with  the administration  of the affairs of  Jagannathdas and there is evidence that they met almost  daily.   In  the   circumstances,  the  decision  of Jagannathdas and  Premwati to  abandon  their  intention  to adopt his son Gopaldas and to prefer the appellant must have hurt considerably.  The events which took place on September 24, 1951  moved much  too rapidly  for him to have taken any effective counter-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 867 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 in the adoption deed. The inconsistency has a been explained satisfactorily by  the trial  court. It is apparent that the



document was  prepared by  the lawyer,  Jamna Prasad  Dubey, containing  recitals   usual  in   such  a   document,   and Manmohandas who  had entrusted  him with the task could have given him  only the  briefest instructions  in regard to its contents. Time  was running out fast as Premwati’s condition grew progressively worse, and when it was brought before her and read  out it  was too late to effect a change in some of the recitals,  and consequently  it was  signed as it was by Jagannathdas  and   Premwati.   The   complaints   made   by Jagannathdas to  the Deputy  Commissioner and  the  District Superintendent of  Police as  well  as  the  public  notices published in  the newspapers  disclaiming execution  of  the adoption deed  and the  adoption are  explicable only in the context of  the overpowering  influence of  Narsinghdas.  So also is  the creation  of the  Trust  in  which  Narsinghdas secured for himself the office of working trustee in respect of most  of the properties. It is significant that the power of  revocation  reserved  to  himself  by  Jagannathdas  was relinquished by  him  within  a  mere  four  months  of  the creation of  the Trust.  The entire  conduct of Jagannathdas persisting thereafter  can be  ascribed to  the position  to which  he   had  been   persuaded,  namely,  one  of  active opposition  to   the  appellant’s  claim  of  adoption.  The attitude was  tempered only later, when a a few weeks before his death  he wrote  to his  mother that  he had "owned" the appellant as his adopted son.      The High Court has referred to some instances where the appellant,  inconsistently   with  his  claim  of  adoption, continued to 868 show himself  as the  son of  Seth Jamnadas.  There were the partition deed,  the application  for mutation  of names  in Naya Mahal, the Income-tax proceeding and other records, but clearly these  are matters in respect of which the appellant plainly considered  it judicious  not to assert his title in proceedings  which   could  only   result  in   its  summary determination  but  to  prefer  to  wait  and  institute  an appropriate suit  for an  authoritative declaration  of  his status.  The  determination  to  file  the  suit  must  have gathered impetus  from the changing attitude of Jagannathdas in favour of the appellant and reflected in his letter dated August 21,  1957 addressed to his mother in which he clearly states his acceptance 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  the  Jagannathdas  and  Premwati  he  can  be  found



entitled to  a  half  share  only  in  the  properties.  The submission is  based on a recital in the trust deed executed by Jagannathdas that if the adoption deed "is declared valid by the  highest  court  then,  today,  I  express,  by  this writing, a  strong and  unequivocal intention to separate at once from  the heir  by the  aforesaid alleged adoption deed and direct  the trustees  that in  that event they shall get the property immediately 869 partitioned and apply at least my half share in the property for  fulfillment  of  the  objects  of  the  trust:"  It  is contended that  the declaration  contained in the trust deed must be  regarded as effecting a partition whereby the share of Jagannathdas  in the  property stood  separated from  the share of  the appellant and the former share must be treated as the  subject of  the trust.  Both the trial court and the High Court  rejected the  contention. They held that a valid partition required  notice to the co-sharer of the intention to separate,  and no  such notice  was given  nor  could  be inferred from  Jagannathdas to  the  appellant.  We  are  in agreement with  the courts  below. It  was held by the Privy Council in  Girja  Bai  v.  Sadashiv  Dhundiraj(1)  and  Bal Krishan  and   Ors.  v.  Bal  Krishan  and  Ors.(2)  that  a separation is effected by a clear and unequivocal intimation on the part of one member of a Joint Hindu Family to his co- sharers of  his desire  to  sever  himself  from  the  Joint Family. In  A. Raghavamma  and Anr.  v. Chenchamma  and Anr. (Supra),  Puttrangamma  and  others  v.  M.S.  Ranganna  and Ors.(3) and  Kalyani (dead)  by  L.  Rs.  v.  Narayanan  and Ors.(4) this  Court held that there should be an intimation, indication or  representation of  such intention,  and  that this manifestation  or declaration of intention should be to the  knowledge  of  the  persons  affected  because  a  mere uncommunicated declaration  amounts to  no more  than merely harbouring an  intention to  separate. In  the present case, there is  no evidence whatever to show that the intention to separate was  communicated by  Jagannathdas to the appellant at any time when creating the trust. There are other grounds on which  the appellant  contends that  the  declaration  of separation in  the trust deed is wholly in effective, but we consider it unnecessary to consider them here.      It may be pointed out that the High Court also repelled the plea  raised by the contesting respondents that pursuant to a  compromise affected  by Narayanibai in a suit filed by her against  the trust  it was not open to her to claim from the trust  a one-fourth share in that estate. The High Court rightly pointed  out that the question did not arise because she could  not be  regarded as  having given up a right then which vested  in her  only on  the death  of Jagannathdas on October 7, 1957. On the question whether the suit was barred 870 by limitation  the High  Court, in our opinion, also rightly concurred with  the trial  court in  maintaining that it was not. No  argument has  been seriously  raised before  us  in respect of these two points.      In the  result the  appeal is allowed, the judgment and decree of  the High Court are set aside and the judgment and decree of  the trial  court are  restored. The  appellant is entitled to his costs from the second and ninth respondents. H.L.C.                                       Appeal allowed. 871