Full Judgment Text
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CASE NO.:
Appeal (civil) 3829-3830 of 2000
PETITIONER:
RAJGOPAL (DEAD) BY LRS.
RESPONDENT:
KISHAN GOPAL AND ANR.
DATE OF JUDGMENT: 16/09/2003
BENCH:
Y.K. SABHARWAL & B.N. AGRAWAL
JUDGMENT:
JUDGMENT
2003 Supp(3) SCR 732
The Judgment of the Court was delivered by
B.N. AGRAWAL, J.: These appeals by special leave have been filed by the
heirs of defendant No. 1-Rajgopal (since deceased) against the judgment
rendered by Karnataka High Court whereby judgment and decree passed by the
first appellate court dismissing the suit have been set aside and those of
the trial court decreeing the suit restored.
The plaintiffs/respondents filed a suit for declaration of title in
relation to the properties described in schedule appended to the plaint and
for recovery of possession thereof. Their case, inter alia, was that one
Moti Lal had two wives. From the first wife, he had a son kishan Lal and
from the second, son Goverdhan Das and the properties in question belonged
to their joint family. Moti Lal and his brother Uday Ram belonged to Mantri
family. In their community, there was a custom of adoption in
’Dwyamushyayana’ from, according to which the person adopted would not
sever his interest in the estate of natural parents and, at the same time,
would acquire interest in the properties of adoptive father upon his
adoption, provided there was an agreement between the natural father and
the adoptive father to the effect that he will be considered to be son of
both of them. As Uday Ram had no male issue, he adopted Goverdhan Das in
’Dwyamushyayana’ form. One chandra Bai was the wife of Goverdhan Das and
Kishan Gopal-plaintiff No. 1 and Srinivas-plaintiff No. 2 were their sons.
Sundra Bai-defendant No. 3 was the keep of kishan Lal from whom he had two
sons, namely, Rajgopal -defendant No. 1 and Ramgopal-defendant No. 2 and as
Sundra Bai was not legally married wife of Kishan Lal, defendant Nos. 1 and
2 were illegitimate children of Kishan Lal from her. Goverdhan Das and his
sons were in joint possession of the properties of Uday Ram with him as
well as those of Moti Lal with Kishan Lal and his children. Kishan Lal died
in the year 1939 and Goverdhan Das in 1945. Thereafter as the sons of
Kishan Lal denied right of the plaintiff Nos. 1 and 2 and their father in
the properties which belonged to the joint families of Kishan Lal and
Goverdhan Das, the same necessitated filing of the present suit.
In the suit, defendants entered appearance denying claim of the plaintiffs
that the adoption was in ’Dwyamushyayana’ form and according to them, the
same was in ordinary form, as such Goverdhan Das upon his adoption ceased
to have any right in the estate of natural father-Moti Lal and upon the
death of Kishan Lal, entire property devolved upon his two sons who were
legitimate ones as Sundra Bai was legally married wife of Kishan Lal,
accordingly plaintiffs had no right to file the present suit.
In support of their respective cases, both the parties adduced oral and
documentary evidence and the trial court dismissed the suit on grounds that
the same was barred by limitation, adoption of Goverdhan Das was not in
’Dwyamushyayana’ form but in ordinary form as such Goverdhan Das after
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adoption ceased to have any right in the estate of natural father,
Goverdhan Das was given in adoption by his father Moti Lal and not by his
brother Kishan Lal, Sundra Bai was legally married wife of Kishan Lal and
defendant Nos. 1 and 2 were their legitimate sons as such upon the death of
Kishan Lal, the entire property devolved upon his sons and his widow.
Against the said judgment, when an appeal was preferred, the first
appellate court upholding order of dismissal of suit on the ground of
limitation dismissed the appeal. While so dismissing the appeal, the
findings of the trial court on the question of marriage of Sundra Bai with
Kishan Lal and legitimacy of their children were confirmed but on the
question of adoption, the court observed that in whichever form the
adoption might have taken place, the same was invalid as Goverdhan Das was
given in adoption by his brother kishan Lal and not by his father Moti Lal,
who, according to the law prevalent at that time, was competent to give in
adoption. Against decision of the first appellate court, matter was taken
by the plaintiffs, to the High Court of Karnataka in a second appeal
wherein the defendants filed cross objection to the finding on the question
of adoption. The High Court allowed the second appeal as in its opinion the
question of limitation was not correctly decided by the lower appellate
court, accordingly without considering correctness or otherwise of findings
on other points recorded by the first appellate court, the Judgment and
decree passed by the first appellate court were set aside and the matter
was remanded to that court for deciding the appeal afresh on merits. In
view of this, as it was not necessary for the High Court to consider the
cross objection on merits, the same was dismissed. After remand, a petition
under Order 41 Rule 27 of the Code of Civil Procedure, for taking certain
documents into additional evidence, was filed before the first appellate
court which having felt that it was a fit case for granting the prayer but
as for admitting the same into evidence, witnesses were required to be
examined, remanded the matter to the trial court after setting aside the
judgment and decree of the trial court.
Upon remand, the trial court decreed the suit in part only with respect to
half share of the plaintiffs after recording findings that adoption was in
’Dwyamushyayana’ form and not in ordinary form, Goverdhan Das was given in
adoption by his brother Kishan Lal and not father Moti Lal, Sundra Bai was
legally married wife of Kishan Lal and defendant Nos. 1 and 2 were his
legitimate children from Sundra Bai and the suit was filed within time.
Thereafter, two appeals were filed before the first appellate court, one by
the defendants challenging decision of the trial court whereby the suit was
decreed and the other by the plaintiffs challenging the findings of the
trial court on the question of marriage of Kishan Lal with Sundra Bai and
legitimacy of defendant Nos. 1 and 2. Appeal filed by the plaintiffs was
dismissed but that filed by the defendants was allowed and suit was
dismissed on the grounds that the same was barred by limitation, the
adoption was not in ’Dwyamushyayana’ form but in ordinary form and
plaintiffs were estopped from saying that there was no valid adoption on
account of the fact that Goverdhan Das was not given in adoption by his
father Moti Lal. Challenging decision of the appellate Court, two second
appeals were filed before the High Court by the plaintiffs which have been
allowed, judgment and decree passed by the first appellate court dismissing
plaintiffs’ suit set aside and those of the trial court decreeing the suit
restored as according to the High Court, the first appellate court had no
jurisdiction to go into the question of adoption and recording any finding
thereon as while passing the order of remand in the second appeal, cross
objection filed against the findings on the question of adoption which was
recorded in favour of the plaintiffs by the first appellate court on the
earlier occasion, was dismissed, as such the same findings attained
finality. Hence, these appeals.
Mr. S.S. Javali, learned Senior Advocate appearing in support of the
appeals had raised three points. Firstly, it has been submitted that the
High Court was not justified in observing that findings on the question of
adoption recorded in favour of the plaintiffs by the first appellate court
before the order of remand by the High Court, was confirmed by that Court
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by dismissal of the cross objection filed by the defendants against the
same. We have been taken through judgment of the High Court passed in the
second appeal on the earlier occasion whereby the matter was remanded to
the first appellate court which clearly shows that as in the opinion of the
High Court, the question of limitation was decided by the first appellate
court without taking into consideration certain factual matrix, it was a
fit case for remitting the matter to it for deciding the entire matter
afresh. As it was not a case of limited remand but an open remand, the High
Court did not go into the merit of findings recorded by the first appellate
court on other questions, including adoption, and, after setting aside the
judg-ment and decree of the first appellate court, remanded the matter to
it for deciding the appeal afresh, meaning thereby on all the points. So
far as the cross objection is concerned, as the judgment and decree of the
first appellate court were set aside, the same was rendered infructuous and
accordingly dismissed. In this view of the matter, we are of the opinion
that the High Court committed an error of law in observing that the
findings on the question of adoption recorded in favour of the plaintiffs
by the first appellate court on the earlier occasion before remand by the
High Court had been confirmed by it while passing the remand order for
which there is absolutely no foundation and the same is contrary to the
materials on the record.
The other two points which fall for consideration of this Court are whether
findings recorded by the first appellate court to the effect that (i)
Goverdhan Das was given in adoption by natural father Moti Lal and (ii) the
adoption was not in ’Dwyamushyayana’ form but in ordinary form, are
vitiated in law. Legality or otherwise of the aforesaid findings has not
been taken into consideration by the High Court for the reasons enumerated
above. Ordinarily, we would have remanded the matter to the High Court for
considering the same, but we do not propose to adopt that course for two
reasons, firstly, the suit was filed 47 years ago, i.e., in year 1956 and,
secondly, the remand would be an exercise in futility in view of the fact
that the second appeal before the High Court was concluded by findings of
facts on the question of adoption recorded by the first appellate court,
which was final court of fact.
Thus, we proceed to consider the question whether the finding recorded by
the first appellate court that Goverdhan Das was given in adoption by his
natural father Moti Lal suffered from any legal infirmity. At this stage,
it may be relevant to state that as Goverdhan Das was given in adoption
much before the coming into force of Hindu Adoptions and Maintenance Act,
1956, the parties will be governed by the law which was in force at the
time of adoption. According to Paragraph 474 of Mulla ’s Hindu Law, 18th
Edition, "the only person who can lawfully give a boy in adoption are his
father and his mother. " This shows that Goverdhan Das could have been
given in adoption by his father Moti Lal and not brother Kishan Lal. From
the pleadings, it becomes clear that the plaintiffs had nowhere averred in
the plaint that Goverdhan Das was not given in adoption by his father Moti
Lal but brother Kishan Lal. It was simply pleaded that the adoption was in
’Dwyamushyayana’ form. As never such a case was pleaded in the plaint,
there was no occasion for the defendants to plead in the written statement
as to who gave Goverdhan Das in adoption and accordingly defendants in the
written statement, only denied that adoption was in ’Dwyamushyayana’ form
and according to them, the same was in ordinary form. In the abence of any
pleading whatsoever on the question as to whether Goverdhan Das was given
in adoption by his father Moti Lal or brother Kishan Lal there was no lis
between the parties on this question, as such courts could not have gone
into the same even if some evidence was adduced and the lower appellate
court rightly decided this question against the plaintiffs. Reference in
this connection may be made to a decision of the Privy Council in the case
of Siddik Mahomed Shah v. Mt. Saran, AIR (1930) PC 57, in which it was held
that "Where a claim has been never made in the defence presented, no amount
of evidence can be looked into upon a plea which was never put forward".
The said case has been referred to by this Court with approval in the case
of Bhagat Singh and Ors. v. Jaswant Singh, AIR (1966) SC 1861. In that
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case, some evidence was led but the High Court refused to go into the
question observing that where no plea was taken , it cannot be said that
there was any lis between the parties thereon. This Court upheld decision
of the High Court observing that the same was supported by decision of the
Judicial Committee in the case of Siddik Mahomed Shah (supra). Thus we do
not find any error in finding recorded by the first appellate court on this
point.
Next question to be considered is as to whether the first appellate court
was justified in holding that the adoption was not in ’Dwyamushyayana’ form
but in ordinary form. The present case relates to adoption under the custom
prevalent in the community to which the parties belong. Undisputedly, there
was a custom in the said community to adopt in ’Dwyamushyayana’ form. At
this stage, a question arises as to what is ’Dwyamushyayana’ form of
adoption.
The term ’Dwyamushyayana’ is applicable to an adopted son retain-ing his
filial relation to his natural father with his acquired relation to his
adoptive parents when there is a mutual agreement between the natural
father and the adoptive father that the adopted son shall be the son of
both. The son so adopted is technically called dwyamushyayana’. See Dattaka
Chandrika, section 2, pl. 24 and 40, and Vyavahara Mayukha, Chapter IV,
section 5, pl 21 (Stokes’ Hindu Law, pages 65, 641 and 646).
The dwyamushyayana, adopted son is of two kinds (1) absolute, i.e. nitya
dwyamushyayana, and (2) incomplete, i.e. anitya dwyamushyayana. The
absolute dwyamushyayana son is one who is given in adoption with this
stipulation : "This is the son of us two (the natural father and the
adopter)." The incomplete dwyamushyayana son is one who is initiated by the
natural father in the cremonies ending with tonsure and by the adoptive
father in the ceremonies commencing with the investiture of the sacred
thread. As he is initiated in the gotras (family names) of both the natural
father and the adoptive father, he is considered to be the son of two
fathers but incompletely. If a child after being born is adopted so that
his initiation under both gotras be wanting, he would partake only of the
gotra of the adoptive father. See Dattaka Mimansa, Chapter 6, pl. 41
(Stokes’ Hindu Law, page 610). Mayrte’s treatise on Hindu Law & Usage, 14th
Edition page 469, described the peculiar form of ’Dwyamushyayana’ adoption
thus:
"221. An exception to the rule that adoption severs a son from his natural
family exists in the case of what is called a dwyamushyayana or son of two
fathers. This term has a two-fold acceptation. Originally it appears to
have been applied to a son who was begotten by one man upon the wife of
another, but for and on behalf of that other. He was held to be entitled to
inherit in both families, and was bound to perform the funeral oblation
both of his actual and his fictitious father. This is the meaning in which
the term is used in the Mitakshara; but sons of this class are now
obsolete. Another meaning is that of a son who has been adopted with an
express or an implied understanding that he is to be the son of both
fathers. This again seems to take place in different circumstances. One is
what is called the anitya, or temporary adoption, where the boy is taken
from a different gotra, after the tonsure has been performed in his natural
family. He performs the ceremonies of both fathers and inherits in both
families but his son returns to his original gotra. This form of adoption
is also obsolete.
The only form of dwyamushyayana adoption that is not obsolete is the nitya
or absolute dwyamushyayana in which a son is taken in adoption under an
agreement that he should be the son of both the natural and adoptive
fathers."
Mulla on Principles of Hindu Law, 18th Edition, page 821, has enumerated
the form of ’dwyamushyayana’ adoption which runs thus :
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"486. (1) Where a person gives his son to another under an agreement that
he should be considered to be the son of both the natural and the adoptive
fathers, the son so given in adoption is called dwyamushyayana. In this
form of adoption, it is essential to prove such an agreement and it should
also be proved that there was the ceremony of giving and taking of the
adoptive son.
(2) A dwyamushyayana inherits both in his natural and adoptive families."
Likewise Raghavachariar in his treatise Hindu Law, 9th Edition, has
referred to ’.dwyamushyayana’ form of adoption at page 148 thus :
"174. Dwyamushyayana is the name given to a person who is given in adoption
under an agreement that he should be consid-ered to be the son both the
adoptive father and the natural father. In this form, it is essential to
prove such an agreement and also the performance of the ceremony of giving
and taking of the adoptive son."
Nitya i.e., absolute dwyamushyayana form of adoption has been recognised by
the Judicial Committee in the case of Nilmadhub Doss v. Bishumber Doss and
Ors., (1869) 13 Moore’s Indian Appeals 85, in which it was held that the
effect by the Hindu Law of an adoption in dwyamushyayana (son of two
fathers) form is not to deprive the adopted son of his lineage to his
natural father, or to bar him of his right of inheritance to his natural
father’s estate.
Another decision of the Judicial Committee is the case of Wooma Daee v.
Gokoolanund Doss, ILR (1878) 3 Calcutta 587 wherein their Lordships, after
referring to certain passages in the Dattaka Mimansa and Dattaka Chandrika,
conceded at page 597 that :
"they do in terms prescribe that a Hindu wishing to adopt a son shall adopt
the son of his whole brother, if such a person be in existence and capable
of adoption, in preference to any other per-son; and qualify the otherwise
fatal objection to the adoption of an only son of the natural father, by
saying that, in the case of a broth-er’s son, he should, nevertheless, be
adopted in preference to any other person as a dwyamushyayana, or son of
two fathers."
Further, their Lordships observed at page 598 :
"Again, to constitute a Dwyamushyayana there must be a special agreement
between the two fathers to that effect; or the relation must result from
some of the other circumstances indi-cated by Sir William MacNaghten at
p.71 of his Principles and Precedents." In every case of absolute
dwyamushyayana form of adoption, there must be an agreement to the effect
that the person given in adoption shall be the son of both, i.e. the
natural father as well as adoptive father and such an agreement must be
proved like any other fact by the party alleging the same. See Laxmipatirao
Shrinivas Deshpande v. Venkatesh Tirmal Deshpande, AIR (1916) Bombay 68 and
Mohna Mal v. Mula Mal and Ors., (1925) 89 Indian Cases 688.
Dwyamushyayana form of adoption was subject matter of considera-tion before
this Court in the case of M.Ct. Muthiah and Anr. v. Controller of Estate
Duty, Madras, AIR (1986) SC 1863 wherein the decisions of Judicial
Committee referred to above were noticed with approval. In that case
question had arisen in relation to payment of estate duty in the hands of
the accountable person upon the death of one M.Chindambaram Chettiar who
had given his only son in adoption in dwyamushyanana form and after
adoption, another son was born to him. Upon the death of the natural
father, question had arisen for the payment of estate duty upon the estate
of the deceased. On behalf of the Revenue, it was contended that the share
of deceased in the joint family property was only half as one son was given
in adoption. On behalf of the accountable person, stand was taken that as
adoption was in dwyamushyayana form, the adopted son did not sever his
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interest in the estate of the natural father and was entitled to inherit
properties of adoptive as well as natural father both, as such share of the
natural father in the joint family property was only one third and not
half. The High Court of Allahabad held that the share of deceased was one
third and not half in view of the fact that adoption being in
dwyamushyayana form, the adopted son had also one third share. This Court
upheld decision of the High Court and dismissed the appeal.
In the case on hand, the first appellate Court, after taking into
consideration and discussing the oral and documentary evidence thread-bare,
recorded a finding that the plaintiffs failed to prove that there was an
agreement between the natural and the adoptive fathers to the effect that
adopted son shall be treated to be the son of both of them and entitled to
inherit their properties and consequently, the adoption of Goverdhan Das
was in ordinary form. Mr. V.A. Mohta, learned Senior counsel appearing on
behalf of the respondents strenuously contended that the finding recorded
by the first appellate court was unwarranted. The finding on this point
recorded by the first appellate court which was final court of fact was a
pure finding of fact and could not have been interfered with by the High
Court in the exercise of powers conferred upon it under Section 100 of the
Code of Civil Procedure, 1908, more so when no question of law much less
substantial one was involved. Apart from that, after giving our anxious
consideration, we do not find any ground whatsoever to interfere with the
said finding recorded by the final court of fact. This being the position,
in our view, the High Court was not justified in allowing the appeals and
decreeing the suit by restoring judgment and decree passed by the trial
court.
In the result, the appeals are allowed, impugned judgment and decree
rendered by the High Court are set aside and those passed by the first
appellate court are restored. In the circumstances, there shall be no order
as to costs.