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PETITIONER: SHRI KISHORI LAL

       Vs.

RESPONDENT: MST.  CHALTIBAI

DATE OF JUDGMENT: 01/12/1958

BENCH: KAPUR, J.L. BENCH: KAPUR, J.L. IMAM, SYED JAFFER DAS, S.K.

CITATION:  1959 AIR  504            1959 SCR  Supl. (1) 698  CITATOR INFO :  F          1983 SC 114  (19)  R          1987 SC 962  (4)

ACT:        Hindu Law-Adoption, proof of-Evidence not proving  adoption-        Estoppel-Both  parties  knowing  true  facts,  if   doctrine        applicable-Admissions  and conduct of Parties, if can  Prove        adoption.

HEADNOTE: The  respondent filed a suit for declaration and  possession of  certain properties left by her deceased husband  L.  The appellant  contested  the  suit on the grounds  that  L  had adopted  him  as  his son six months  before  his  death  In addition  to  the oral evidence of  adoption  the  appellant alleged that he performed the obsequies of L as such adopted son, that on the thirteenth day after the death of L he  was taken  by  the respondent in her lap, that he  entered  into possession of the estate of L, that the 699 respondent performed his marriage and that he was recognised as  the  adopted  son  of L even  by  the  respondent.   The appellant  further pleaded that the respondent was  estopped from  challenging  his adoption by  her  representations  in previous  legal proceedings and in documents and on  account of the fact that the appellant had by this adoption lost his share  of  the  properties  in  his  natural  family.    The respondent  denied  both the adoption and the  treatment  of acceptance  of  the appellant as the adopted son of  L.  The trial Court dismissed the suit holding the adoption  proved. On  appeal the High Court held the adoption was  not  proved and decreed the suit.  Both Courts held that the  respondent was not estopped from challenging the adoption. Held,  that  the  High Court. had correctly  held  that  the adoption of the appellant by L had not been established.  As an  adoption results in changing the course  of  succession, the evidence to support it should be such that it should  be free  from  all  suspicion of fraud and  so  consistent  and probable as to leave no occasion for doubting its truth. Held  further,  that the. respondent was not  estopped  from disputing  the  adoption.   The  correct  rule  of  estopped

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applicable  in  the  case of adoption is that  it  does  not confer  status; it only shuts the mouths of certain  persons if  they try to deny the adoption.  But where  both  parties are conversant with the true state of facts the doctrine  of estopped has no application.  Admissions made by a party are not  conclusive,  and unless they constitute  estopped,  the maker is at liberty to prove that they were mistaken or were untrue.   Presumptions arising from the conduct of  a  party cannot  sustain an adoption even though it might  have  been acquiesced in by all concerned when the evidence shows  that the adoption did not take place. Mohori  Bibi v. Dhurmdas Ghosh, (1902) 30 I.A.  114,  relied upon.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 177 of 1955. Appeal  from  the judgment and decree  dated  September  28, 1953,  of the former Nagpur High Court in First  Appeal  No. 115  of 1951, arising out of the judgment and  decree  dated July  25, 1951, of the Court of Additional  District  Judge, Bhandara, in Civil Suit No. 14-A of 1957. C. B. Aggarwala and Radheylat Aggarwal, for the appellant. S. P. Sinha and S. N. Mukherjee, for the respondent. 1958.   December 1. The Judgment of the Court was  delivered by 700 KAPUR, J.-This is an appeal against the judgment and  decree of  the  High Court of Nagpur reversing the  decree  of  the Additional  District judge dismissing the plaintiff’s  suit. The  appellant  before us is the defendant Kishori  Lal  who claimed to be the adopted son, adopted by the husband of the plaintiff,  Mst.   Chaltibai who is the respondent  in  this appeal. The suit out of which this appeal arises was brought by Mst. Chaltibai,  the widow of Lakshminarayan, a Marwari  Aggarwal of  the District of Bhandara against Badrinarayan  defendant No. 1 and his son Kishori Lal defendant No. 2 now  appellant for a declaration that properties in sch.  B & C belonged to her  as heir to her deceased husband Lakshminarayan and  for possession  of the property in schedule D. The facts of  the litigation  relevant  for the purpose of this  judgment  are these: Badrinarayan and Lakshminarayan were two brothers the former who was elder was carrying on business at Raipur  and the  latter  who  was younger carried  on  business  in  the ancestral   village   named  Tirora  where  it   is   stated Badrinarayan also was doing some business.   Lakshminarayans first  wife died in 1919 leaving a son and a  daughter.   In 1922  Lakshminarayan married the respondent Mst.  Chaltibai. His son died sometime after this marriage and therefore  the only remaining child of Lakshminarayan was the daughter Mst. Jamnabai  who was married to one Chotteylal.  On January  6, 1936,  Lakshminarayan  died of a heart disease  leaving  his estate which is given in schs.  B, C and D and is valued  at about  Rs.  30,000.  Although the plaintiff  Chaltibai,  now respondent,  had alleged that Lakshminarayan  died  suddenly and  did not suffer from any heart disease previous  to  his death,  the appellant pleaded that Lakshminarayan  developed heart trouble in 1934.  He also pleaded that because of this heart trouble Lakshminarayan became despaired of begetting a son  and  therefore adopted in Jaisth  (May-June)  1935  the appellant Kishorilal then aged 13 years who was the youngest of  the  five sons of his brother Badrinarayan,  the  others being Mohanlal, Gowardhan, Nandlal and Narayan.  He  further

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pleaded that after 701 his  adoption he resided with Lakshminarayan as his  adopted son and when Lakshminarayan died he performed his  obsequies as such adopted son, was placed on the gaddi and the  turban was  tied on his head in accordance with the custom  of  the caste;  that he was on the thirteenth day (tervi)  taken  by the  respondent Chaltibai in her lap from Badrinarayan  with the consent and in the presence of the relations of Lakshmi- narayan on the thirteenth day of the death of Lakshminarayan ;  that  he  entered into possession of the  estate  of  the deceased  Lakshminarayan and was recognised as  his  adopted son even by the respondent who continued to accept and treat him as such upto 1946; and in 1942 the respondent  performed his (the appellant’s marriage).  After he attained  majority he  managed the estate himself and there was a partition  in the family of Badrinarayan on October 30, 1943, in which the appellant, because of his having been given out in  adoption in another family, received no share. The  respondent in the plaint denied both the  adoption  and the  treatment or acceptance of the appellant as an  adopted son.  She also stated that she was an illiterate purdanashin woman who was not conversant with the management of business and  after  the  death  of  her  husband  she  reposed  full confidence  in  Badrinarayan who assured her that  he  would properly  look after her affairs, business and property  and consequently  Badrinarayan took over the management  of  the estate  and  the account books and also looked  after  court work.   At his instance she (the respondent) signed  certain papers  without understanding them or without knowing  their contents  and sometimes she even signed blank  papers.   The appellant and his father Badrinarayan then attempted to oust her  from the business and the estate of her  husband  which led  to disputes between the parties and  proceedings  under ss.107 & 145 of the Code of Criminal Procedure were started, a  receiver  was appointed and the Magistrate  by  an  order dated  May  19,  1947, directed the parties  to  have  their rights   decided   by  a  civil  court.   This   order   was unsuccessfully challenged by the appellant in revision.   In the criminal case the appellant, it is 702 alleged, asserted that he had been adopted by  Lakshminarain six  months prior to his death, a fact which the  respondent Chaltibai denied in her plaint. On these pleadings the court framed four issues and the  two relevant issues for the purpose of this appeal are : (1)Did   the  deceased  Lakshminarayan  validly  adopt   the defendant  No. 2 in the bright fortnight of Jyestha  (June), 1935 A. D. ? (b)  Was the adoption valid according to law ? (2)  Had the plaintiff all along recognised the adoption  as  valid  and legal and  had  she  been  treating defendant No. 2 as Lakshminarayan’s son all along ? (b) If so, result ? The  trial court dismissed the suit.  It held  the  adoption proved  but found against the appellant on the  question  of estoppel.  The High Court on appeal reversed the finding  as to  the  factum of adoption but upheld the  finding  on  the question  of  estoppel.   It was of  the  opinion  that  the respondent   was   not   estopped   on   account   of    any misrepresentation  made  by her and that there was  no  such conduct  on  her  part which deprived her of  her  right  of bringing  the present suit and that both parties  knew  that there  was  no adoption in fact.  The appeal  was  therefore allowed.   The defendant Kishorilal has brought this  appeal

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to this Court under a certificate of the High Court and  the judgment  of the High Court is assailed on several  grounds: Firstly, it was urged that the evidence produced in  support of  the  adoption proved that the appellant was  adopted  by Lakshminarayan  six months before his death.  Secondly,  the doctrine of estoppel was relied upon, estoppel on the ground that  the respondent Chaltibai had represented  in  previous legal proceedings and in various ways by execution of  docu- ments and by her actions that the appellant was the  adopted son  of  Lakshminarayan.  She had put him in  possession  as owner of all the estate of Lakshminarayan, and had given  up her  own claim to heirship to his estate and as a result  of this conduct and representations made by the respondent  the appellant had                             703 altered his possession (i) by being completely  transplanted from  his real father’s family into another family and  (ii) by  being  deprived of his share of the  properties  in  his natural family.  Thirdly, it was argued that because of  her admission  that  the  appellant  was  the  adopted  son   of Lakshminarayan  and his heir the burden was on her  to  show that  he  was  not the adopted son.  And  fourthly,  it  was submitted  that having regard to the long course of  conduct of the respondent Chaltibai in treating the appellant as the adopted  son of Lakshminarayan the evidence produced  should be  appraised in such a manner as to hold it sufficient  for proving the adoption. There is no formal deed of adoption, the appellant therefore sought  to  prove it by the evidence of  six  witnesses  who were.   his  real  brother  Mohanlal,  his  natural   father Badrinarayan and two relations Narsingdas and Shankarlal,  a neighbour  Chattarpatti who is some kind of a physician  and Kishorilal  himself  appeared  in support of  his  case.   A seventh witness Sobharam was produced to prove an  admission by  Lakshminarayan that he had adopted the  appellant.   The story  of the adoption as disclosed by the evidence for  the appellant  was that as Lakshminarayan had no son of his  own he  asked his brother Badrinarayan to give his youngest  son in  adoption to which he agreed and the adoption took  place at  the  house of Lakshminarayan at Tirori in the  month  of Jyaistha   1935  about  six  months  before  the  death   of Lakshminarayan.   The formalities of adoption, according  to this  evidence, consisted of placing the appellant as a  son not in lap of the adoptive mother but of Lakshminarayan  who put a tilak on the appellant’s forehead and tied a turban on his head.  This was followed by distribution of pansupari to the  persons assembled who were Narasingdas  and  Shankarlal who were from outside Tirora, Raman and Jivan Singh who were servants  of  Lakshminarayan, Chhatarpatti a  neighbour  and Bhaiyalal  who  has  not been examined and  there  was  also present  Mohanlal  a real brother of  the  appellant.   Some other  persons were also present by the appellant  but  they are not witnesses in the case and Badrinarayan and  Mohanlal did 704 not  mention  their  presence.  No  religious  ceremony  was performed and there was no priest though witness  Narsingdas stated  that a priest was present at the  adoption  ceremony and ganesh puja was performed.  The evidence also shows that no  invitations  were sent to the  brotherhood,  friends  or relations  and  besides the persons mentioned above  no  one else  was  present and thus no publicity was  given  to  the adoption.   None  of the relations of  the  respondent  were invited  or  were  present although  she  had  brothers  and sisters   and  they  were  married.   Even  the   respondent

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Chaltibai  was not present at the ceremony of adoption.   It is  stated that she was in some inner room.  And  after  the formalities  of  adoption  Lakshminarayan  himself  put  the adopted  son  in the lap of the respondent  Chaltibai.   The adoption  was  not  followed  by  any  feast  nor  was   any photograph  taken and no presents were given to the  adopted son.  Lakshminarayan did not consult any priest as is  usual for  fixing  an auspicious day for adoption.   Although  the defendants  were  allowed to amend their  written  statement they  gave  no  details of the  adoption  by  Lakshminarayan beyond saying that it was in the month of Jyaistha 1935  but what  date it was not mentioned.  The parties are  Aggarwals and  belong to a commercial community who maintain  complete and  detailed  accounts.   Although  Badrinarayan  who   was defendant  No.  1 chose to put in accounts  of  January  20, 1936,  in  connection  with what he expended  on  the  tervi (thirteenth) day ceremony after the death of  Lakshminarayan yet  he filed no such accounts showing the date when he  and his  son  the appellant came to Tirora from Raipur  for  the purposes   of   adoption  or  when  they  went   back.    No contemporary document of any kind has been produced to  show when  the  adoption  took  place or  what  was  expended  by Badrinarayan nor have the accounts of Lakshminarayan who ac- cording  to the appellant himself maintained  account  books been produced to show as to the expenses of whatever  little ceremony  was  observed on the date of  the  adoption.   The account  produced by Badrinarayan shows the amount  expended on the occasion of                             705 thirteenth day ceremony after the death of Lakshminarayan on betel leaves, milk, betelnuts and also what was paid at  the house  of Lakshminarayan including the amount paid  for  the turban  for the reading of the garud puran or what was  paid to Kesu (which we are told is a pet name of Kishorilal)  for touching  the feet of the elders.  The significance of  this fact has not been explained by the appellant. I  As  an  adoption  results  in  changing  the  course   of succession,  depriving wives and daughters of  their  rights and transferring properties to comparative strangers or more remote  relations  it  is necessary  that  the  evidence  to support it should be such that it is free from all suspicion of  fraud  and  so consistent and probable as  to  leave  DO occasion  for  doubting  its  truth.   Failure  to   produce accounts,  in circumstances such as have been proved in  the present case, would be a very suspicious circumstance.   The importance  of accounts was emphasised by the Privy  Council in  Sootrugun v. Sabitra (1) ; in Diwakar Rao v.  Chandanlal Rao  (2) ; in Kishorilal v. Chunilal (3); in Lal  Kunwar  v. Charanji Lal (4) and in Padamlal v. Fakira Debya (5). The  oral  evidence of witnesses deposing to the  factum  of adoption  is  both insufficient and  contradictory.   Beyond their  being agreed on the question of taking the  appellant in  adoption  by  Lakshminarayan the witnesses  are  not  in accord  as  to  the details of the adoption  or  as  to  the ceremonies  or  as  to the usual feast  following  it.   The giving  of  presents is the only detail on  which  they  are agreed, they all deposed that no presents were given.  As to what  happened in regard to the taking of the  appellant  in her lap by the respondent after the death of  Lakshminarayan the  witnesses are not in accord.  There is disagreement  as to its date how it came about and why.  The adoption  during the lifetime of Lakshminarayan is contradicted by a document dated  January  24,  1938, a sale  deed  by  the  respondent Chaltibai in favour of the (1) (1834) 2 Knapp. 287.  (2) (1916) I.L.R. 44 Calcutta  201

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(P.C.). (3) (1908) 36 I.A. 9.  (4) (1909) 37 I.A. 1, 7. (5)A.I.R. 193, (P.C.) 84. 89 706 Firm  Ganeshram  Fatteh  Chand the family  firm  of  witness Narsingdas.  Therein the adoption of the appellant is stated to  have taken place after the death of  Lakshminarayan  and was  by  (Chaltibai respondent under the  authority  of  her deceased  husband and with the consent of the whole  family. This   document   was  witnessed  by  the   natural   father Badrinarayan.   No satisfactory explanation of  this  wholly different  adoption being mentioned in a deed executed  only two  years after the death of Lakshminarayan has been  given by the appellant, except this that whether he was adopted by Lakshminarayan  in  his lifetime or after his death  by  the respondent  Chaltibai,  he  would  be  the  adopted  son  of Lakshminarayan and therefore this discrepant recital in  the sale deed was of little consequence.  This argument  ignores the  case set up by the appellant in his  written  statement and  the  utter  lack of evidence of the  authority  of  the husband  or of the assent of his kinsmen which  was  neither pleaded  nor  proved.  Another circumstance  which  casts  a great deal of doubt on the adoption set up by the  appellant is that after the adoption the appellant went back to Raipur where   his   natural   father   was   residing.    Although Badrinarayan  stated that after the adoption  the  appellant lived  with  his adoptive father, this is negatived  by  the evidence  produced by the appellant himself which is to  the effect that he went back to school at Raipur and returned to Tirora on the day Lakshminarayan died.  The High Court  also found  that  he  left for Raipur  after  the  obsequies  and returned  three  or four months later.  The  school  leaving certificate  shows  that he was a student in the  school  at Tirora from June 22, 1936 to June 30, 1937, and there he was entered as the son of Badrinarayan.  Taking all these  facts into consideration the High Court, in our opinion, has  cor- rectly  held that the factum of adoption  by  Lakshminarayan has not been established. It  was  next argued on behalf of the  appellant  that  even though  the  evidence produced in support  of  the  adoption might be unsatisfactory and not sufficient to establish  the factum of adoption the respondent in this                             707 case was estopped from setting up the true facts of the case inasmuch as she represented in the former document and legal proceedings and in various other ways that the appellant was the  adopted son of the deceased Lakshminarayan and  thereby caused him to change his position by being transferred  from the family of Badrinarayan to that of Lakshminarayan.  These documents  will be discussed later.  In this case  both  the parties   were  aware  of  the  truth  of  the   facts   and consequently the doctrine of estoppel was inapplicable.   It cannot  be  said  that the respondent by her  own  words  or conduct  wailfully  caused  the  appellant  to  believe  the existence  of  a certain state of things  i.e.  adoption  by Lakshminarayan  and induced him to act on that belief so  as to  alter  his  position  and therefore  she  could  not  be concluded  from  averring  a different state  of  things  as existing  at  the same time.  See Pickard v.  Sear  (1)  and Square  v. Square (2 ). The Privy Council in Mohori Bibi  v. Dhurmdas Ghogh (3 ) held that there can be no estoppel where the  truth  of  the matter is known  to  both  the  parties. Therefore when both the parties are equally conversant  with the true facts the doctrine of estoppel is inapplicable.

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The documents giving rise to the plea of estoppel were  four and the appellant also relied on the acts of the  respondent which will be referred to later.  The first document was  an application   dated  March  21,  1936,  for   a   succession certificate which was filed by the respondent as "  guardian mother  "  of the appellant Kishorilal.  The  necessity  for this  application  arose because in order to  get  insurance money on a policy taken out by the deceased Lakshminarayan a succession  certificate had to be obtained.  The High  Court came  to the conclusion that there was no evidence  to  show that the respondent Chaltibai’s signatures were obtained  on the document after it was explained to her, the document was in  English and she was not conversant with  that  language. Two  other  drafts were made for the  application  for  this succession certificate which (1)  (1837) 6 AD. & E. 469; (1837) 112 E.R. 179. (2)  [1935] P. 120. (3)  (1902) 30 I.A. 114. 708 are both on the record.  In these two drafts Badrinarayan is shown  as  " guardian uncle " of the  appellant  Kishorilal. Although Badrinarayan was reluctant to do so he had to admit the  existence  of these two drafts but added  that  he  had instructed  Jivan Singh a servant of Lakshminarayan  not  to file the application till after he had consulted a Mr. P. S. Deo,   a  pleader  and  after  he  had  consulted  him   the application was filed but with Chaltibai as guardian.   This document  in para. 3 sets out the names of the relations  of the  deceased.  They were the widow Chaltibai, the  daughter Jamnabai,  the  brother Badrinarayan and the  four  sons  of Badrinarayan.   In this column the appellant Kishorilal  was not  shown  as  a  relative of the  deceased.   In  a  later paragraph  it  was  stated that the  petitioner  i.  e.  the appellant Kishorilal claimed the certificate as the  adopted son  of the deceased Lakshminarayan.  On the finding of  the High  Court  that  the document was  not  explained  to  the respondent  Chaltibai it cannot be said that it  established any  admission, much less estoppel.  This document  did  not contain  any  admission which would necessarily  show  -that Kishorilal  appellant was adopted by  Lakshminarayan  during his lifetime. The  next document relied upon is a bahi entry in a  Mathura Panda’s  book  dated July 21, 1944.  The story is  that  the respondent  Chaltibai visited Mathura on her way  back  from Badrinarayan  and the Panda of the family made an  entry  in his  bahi  after  making  enquiries  from  her  showing  the appellant  Kishorilal  as  the adopted son.   The  entry  is signed  by  her.  This document is contradicted  by  another entry in the same Panda’s bahi which is stated to have  been made at the instance of Mohanlal, the eldest brother of  the appellant on March 2, 1947, about 2-1/2 years after the pre- vious  entry.  In the later entry the  appellant  Kishorilal was shown as the son of Badrinarayan and not the adopted son of  Lakshminarayan.  Whether the document-the previous  Bahi entry-was at the instance of the respondent Chaltibai or not is not material because it does not advance the case of  the appellant.   This  document  also does  not  show  that  the appellant 709 was  adopted  by Lakshminarayan.  Then there is  a  document adhikar patra dated May 4, 1946, by which a dispute  between the  appellant  and  the  respondent  was  referred  to  the arbitration  of 7 persons.  It was signed by  the  appellant and the respondent and it was therein recited: "  Relations between us mother and son have become  strained

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in  connection  with some matters. it is very  necessary  to remove the same". In  another  portion  of the document also  words  used  are "between us the mother and the son".  This document also was not  accepted by the High Court as containing  an  admission because  even  at the time of its execution  the  respondent Chaltibai  was denying the adoption of Kishorilal which  was proved by the testimony of two of the panches  (arbitrators) themselves.  It cannot be said therefore that this  document represented  correct state of affairs but even if it did  it cannot be treated as an admission by the respondent that the appellant was adopted by Lakshminarayan. Lastly  there  is the deed of sale dated January  24,  1938, wherein  the  respondent  had  recited  that  the  appellant Kishorilal  was adopted by her husband ,in  accordance  with his wishes and consent of the entire family ". This  recital negatives  the whole case of the appellant as set up in  his written  statement  that he was  adopted  by  Lakshminarayan during  his lifetime.  In his written statement he bad  only pleaded his having been placed in the lap of the  respondent Chaltibai as confirmatory of his adoption by Lakshminarayan. The  documents mentioned above do not support the plea  that the appellant had been led. to alter his position through  a belief  in  any  misrepresentation made  by  the  respondent Chaltibai  as to his having been adopted by  Lakshminarayan. And  he cannot be allowed to set up a case different to  his case in the written statement nor can he be allowed to prove his  title  as an adopted son on such different  case.   See Tayammaul  v. Sashachalla Naiker (1), Gopeelal  v.  Mussamat Chandraolee  Buhajee  (2  ). The correct  rule  of  estoppel applicable in the case of adoption is that it (1) (1865) 10 M.I.A. 429. (2) (1872) SUPP.  I.A. 131. 710 does  not confer status.  It shuts out the mouth of  certain persons  if  they try to deny the adoption, but  where  both parties are equally conversant with the true state of  facts this  doctrine has no application.  Two further facts  which the  appellant’s counsel relied upon to support his plea  of estoppel  were:  (1)  his  being  allowed  to  perform   the obsequies  of Lakshminarayan and (2) the performance of  his marriage by the respondent Chaltibai as his adoptive mother. If the adoption itself is disproved these two facts will not add to the efficacy of the plea of estoppel which  otherwise is  inapplicable:  Dhanraj v. Sonabai  (1).   The  appellant relied on Rani Dharam Kunwar v. Balwant Singh (2) which  was a case where the adoptive mother, the Rani had herself in  a previous proceeding pleaded that she had authority to  adopt and the Privy Council were of the opinion that the  question could  be decided on its own facts without recourse  to  the doctrine of estoppel, although they did not differ from  the view  of  the courts below as to the  applicability  of  the doctrine  of estoppel.  That was not a case of  the  parties being  equally  conversant with the true facts  and  further there  was  a  finding that the person claiming  to  be  the adopted  son was as a matter of fact adopted.  In  our  view there is no substance in the plea of estoppel raised by  the appellant. Whatever  the acts of the respondent Chaltibai,  what.  ever her  admissions  and  whatever the  course  of  conduct  she pursued  qua the appellant Kishorilal they could not  amount to estoppel as both parties were equally conversant with the true facts.  In none of the four documents which are  signed by  her, is there any admission that Kishorilal was  adopted by  her husband during his lifetime.  On the other  hand  in

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the  sale  deed  dated  January 24,  1938,  she  recited  an adoption  by  herself  which is not the  adoption  that  the appellant  relied  upon in support of his case.   The  other documents  i. e. the application for succession  certificate and  the arbitration agreement and the entry in the  Panda’s bahi  are all consistent with the recital in the  sale  deed and do not establish the case (1) (1925) 52 I.A. 231, 243. (2) (1912) 39 I.A. 142, 148. 711 of  the  appellant  as to  the  adoption  by  Lakshminarayan himself. It  was  then argued for the appellant that  the  course  of conduct of the respondent and her various acts of  admission and the treatment of the appellant as an adopted son by  the respondent  and other members of the family gave rise  to  a strong  inference  that he (the appellant)  was  adopted  as aleged by him and the evidence should have been so appraised as  to  support  that inference.   Particular  emphasis  was placed  by counsel for the appellant on the fact  that  soon after the death of Lakshminarayan it was given out that  the appellant  was  his  adopted  son  and  this  assertion  was continuously made in many transactions and documents.  These documents, the course of conduct of Chaltibai respondent  in treating the appellant as the adopted son of  Lakshminarayan and   the   length   of  the   appellant’s   possession   of Lakskminarayan’s  estate, it was contended, showed  that  he was the adopted son of Lakshminarayan.  It was also  submit- ted  that  the  admissions  shifted  the  onus  on  to   the respondent on the principle that what a party himself admits to be true may reasonably be presumed to be so and until the presumption was rebutted, the fact admitted must be taken to be  established:  Chandra Kunwar v. Narpat Singh  (1).   The question  of  onus loses its efficacy because it  was  never objected to in the courts below and evidence having been led by the parties, at this stage the court has to adjudicate on the material before it.  And admissions are not  conclusive, and unless they constitute estoppel, the maker is at liberty to  prove that they were mistaken or were  untrue:  Trinidad Asphalt  Company v. Coryat (2).  Admissions are mere  pieces of evidence and if the truth of the matter is known to  both parties  the principle stated in Chandra Kunwar’s  case  (1) would  be  inapplicable.   And  in this  case  there  is  no admission  by the respondent of the appellant’s adoption  by her husband in his lifetime.  Such admissions that there are cannot help the case of the appellant or support a different appraisal of the evidence of the factum of (1) (1906) 34 1. A. 27. (2) [1896] A. C. 587. 712 adoption  or  establish  an  adoption  which  is   otherwise disproved. In  order  to  properly  appreciate  the  effect  of   these admissions  it  is necessary to consider  the  circumstances under  which these various documents were executed  and  the acts  done  or  the  admissions  made.   At  the  death   of Lakshminarayan  the  respondent  was  24  or  25  years  old surrounded  by the family of Badrinarayan whose interest  it was  to foist an adoption on her.  Her own relations do  not seem to have taken much interest in her or her affairs.  She was  thus a widow, lonely and dependent upon  her  husband’s relations.   The trial Court described her as a  pardanashin woman.   Although  Badrinarayan himself denied that  he  was managing the estate of Lakshminarayan, Narsingdas one of the appellant’s witnesses stated that Badrinarayan was doing  so

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and  Badrinarayan  admitted that he looked after  the  court cases  though at the request of the respondent.  It is  with this back. ground that the evidence has to be considered and weighed.   Any  admission made by a widow  situated  as  the respondent  was would necessarily carry very little  weight: Padamlal v. Fakira Debya (1). Besides  the  four documents above mentioned  the  appellant Kishorilal  relied  on the following facts as  instances  of admissions  and  conduct of the respondent  Chaltibai.   The first  is the performance of obsequies by the appellant  and the  subsequent  taking of the appellant in her lap  by  the respondent.   The mere fact of performance of these  funeral rites  does  not  necessarily  support  an  adoption.    The performance  of these rites frequently varies  according  to the  circumstances  of each case and the view and  usage  of different families.  The evidence led by the appellant  him- self shows that in the absence of the son, junior  relations like  a  younger brother or a younger  nephew  performs  the obsequial  ceremonies.   As  was pointed out  by  the  Privy Council  in  Tayamal’s case (2) the performance  of  funeral rites will not sustain an adoption unless it clearly appears that  the adoption itself was performed under  circumstances as would render it (1) A.I.R. 1931 (P.C.) 84. (2) (1865) 10 M.I.A. 429. 713 perfectly valid.  But then it was submitted that the  taking by  the respondent of the appellant in her lap coupled  with the  performance  of  obsequies was a  clear  proof  of  her acceptance  of  the  appellant’s adoption  by  her  deceased husband.  This again is slender basis for any such inference as  Badrinarayan  himself stated that it was  not  customary amongst  them for the widow to take the adopted son  in  her lap  and  in this particular case it was only  done  as  she desired  it.   As proof of adoption by  Lakshminarayan  this piece of evidence has no value because that is not the  case of the appellant; and as showing confirmatory process it  is valueless in the absence of evidence sufficient to establish the  adoption  by  Lakshminarayan  which  in  this  case  is lacking. The  appellant’s  residing  with  Lakshminarayan  after  his adoption  and  after the death of  Lakshminarayan  with  the respondent was next relied upon by counsel for the appellant As we have already said the appellant had not proved that he was residing with Lakshminarayan after his adoption; on  the contrary  the evidence shows that he left Tirora soon  after his alleged adoption and did not return till after the death of Lakshminarayan.  And then again he returned to Raipur and returned  to  Tirora after about four or five  months.   The mere  fact that he continued to reside with  the  respondent since would not in this case prove adoption, because in  the school register he was shown as the son of Badrinarayan  and continued  to  be  so shown upto June  30,  1937,  and  mere residence of a young nephew with a widowed and young aunt is no  proof  of  adoption by her husband  in  the  absence  of satisfactory evidence of the factum of adoption. The  appellant, it was next contended, was in possession  of the  properties of Lakshminarayan after the  latter’s  death and  his  name was brought on the record in  all  civil  and revenue  proceedings.  As we have said  above,  Badrinarayan took over the management of the estate of Lakshminarayan and was  looking  after the conduct of the court cases.   If  in those  circumstances the mutations were made in the name  of the 90

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714 appellant  or suits were brought in his, name or even if  he took  out  licences in his name would be  matters  of  small consequence.   It  is  not shown that at  the  time  of  the mutations  the respondent was present or was represented  or the  suits  were brought with her knowledge and  it  appears that all this was done because the management of the  estate as  well  as the conduct of the cases in courts was  in  the hands of Badrinarayan.  Then the fact that after he attained majority,  the  appellant was managing the  estate  and  was recognised  by  everybody  as its owner also  is  of  little consequence  because as far as the respondent was  concerned somebody  had  to  manage  the  property,  whether  it   was Badrinarayan  or the appellant Kishorilal to her it made  no difference.   It  may  also be mentioned here  that  in  the mutation  order  passed by the Tehsildar on April  8,  1936, which related to 3As. share of Mouza Jabartola the  mutation entry  was made in favour of the respondent and not  in  the name  of the appellant and in the jamabandi papers  relating to different holdings in some places the appellant is  shown under the guardianship of his mother Chaltibai and in  other places under the guardianship of Badrinarayan as his uncle. A great deal of stress was laid by the appellant on the fact that his marriage was performed by the respondent  Chaltibai and  she  purported to do so as his  adoptive  mother.   The performance of the marriage itself does not prove  adoption, which   is  otherwise  disproved,  and  as  a   circumstance supporting the inference of adoption set up by the appellant it is wholly neutral. At  the most the circumstances relied upon by the  appellant may be acts of acquiescence attributed to the respondent but they  would be important only if they were brought  to  bear upon  the  question  which depended  upon  preponderance  of evidence.   If the facts are once  ascertained,  presumption arising  from  conduct cannot establish a  right  which  the facts themselves disprove: See Tayamal’s case (1) at p. 433. Presumptions cannot sustain an adoption even though (1)(1865) 10 M.I.A. 429.                             715 it might have been acquiesced in by all concerned when as in the  present case, the evidence shows that the adoption  did not take place.  Another fact on which the appellant  relied was that on October 30, 1933, Badrinarayan, his wife and his sons partitioned their family property.  That is not an  act of  the respondent and cannot affect her rights if they  are otherwise enforceable. On the whole we are of the opinion that the judgment of  the High Court is sound and that this appeal should be dismissed with costs.                             Appeal dismissed.