Bench:

S Mukherjee

Issue:

Whether Court of appeal below justified reversing the decree of the Trial Court and holding that defendant was adopted son of X and Y and erstwhile tenants of suit premises?

Facts:

• The appeal was focused against the judgment and decree passed by the learned Additional District Judge, Eighth Court at Alipore on 30 March 1992.

• The appellant filed the present case for ejection and damages alleging that she was the owner of premises No. 26/1A Manohar Pukur Lane, Calcutta-29 and that one Kalipada Das was a monthly tenant in a shop room under her after she died. After Kalipada 's death, his tenancy was passed to his widow, Sabitri Bala. The petitioner filed a complaint about the expulsion of Sabitri Bala in the Court of the learned Munsif, Third Court at Alipore, which was decreed, but the Court of Appeal set aside the judgment and transferred the lawsuit to the court of appeal. Sabitri Bala died on January 11, 1982, during the pendency of the suit after remand, leaving no successor and, as such, no one could be substituted in the suit. Ultimately, on February 23, 1983, the suit stood abated. 

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• The current defendants, who were Sabitri Bala workers, occupied the suit shop room as trespassers and, as such, the plaintiff was entitled to recover from such wrongful occupiers the possession of the suit shop room.

• By filing a written statement in which it was repeatedly claimed that he was the adopted son of Sabitri Bala and Kalipada and, as such, he obtained the tenancy on the death of Sabitri Bala, the respondent No. 1 challenged the suit. 

•  By judgment and decree of 7 September 1989, the learned Munsif decreed the case without charge against the defendant no. 1 and ex-parte without expense against the defendant no. 2. The learned Munsif held that defendant No. 1's argument that he was the adopted son of Sabitri Bala and Kalipada had no compelling and persuasive material to establish. The defendant No. 1 chose to appeal, being aggrieved.

• The learned Additional District Judge permitted the appeal through the judgment and decree and, ultimately, dismissed the suit. Also assuming that defendant No. 1 was not the adopted son of Sabitri Bala and Kalipada, the learned Additional District Judge held that he was not a rank trespasser as alleged by the complainant, but his position was that of the licensee under the tenant of the premises. The learned Judge held, however, that Defendant No. 1 was the adopted son of Sabitri Bala and Kalipada and that, therefore, the case could not be sustained because of the non-replacement of the legal representative of Sabitri Bala in the previous suit.

• The plaintiff had come up with this second appeal because he is aggrieved.

Petitioner's Contentions:

• The appellant's argument was based on Sections 4, 6, 7, 9, 10, and 12 of the Hindu Adoptions and Maintenance Act of 1956 (Act 78 of 1956). He argued that the learned Judge in the lower appellate Court subsequently erred in law in finding that the defendant No. 1 was the adopted son of the former tenants in the absence of any cogent material establishing fulfillment of necessary conditions for adoption.

• It was argued that in compliance with the provisions of clause (5) of Section 32 and Section 50 of the Indian Proof Act, 1872, defendant No. 1 did not produce any evidence as to the nature of the relationship of defendant No. 1 as the heir and legal representative of the former tenant.

Respondent's Contentions:

• The respondent argued that no step was taken to substitute the heir and legal representative of Sabitri Bala in the earlier action after the death of Sabitri Bala and that, because the petitioner did not comply with the requirements of Order 22, Rule 4A of the Code of Civil Procedure, and given the reduction of the earlier action, the present action was not maintainable.

• It was further satisfied that the defendant No. 1 effectively discharged his responsibility to prove that he was the adopted son of the former tenants and that he inherited the tenancy as such.

Judgment:

In the absence of evidence of valid adoption, including proof of giving and receiving, and in the view of Sabitri Bala's subsequent conduct and that of defendant No. 1, he rejected his assertion of acceptance. In the matter of his supposed adoption by Kalipada and Sabitri Bala, Defendant No. 1 had failed to satisfactorily justify the presence of suspicious circumstances. The learned judge in the lower appellate court should not have embraced the claims of defendant No. 1 necessarily in the absence of proper proof and should not have held that the adoption had taken place. While religious ceremonies are not required for adoption, a formal giving and taking ceremony must be created. Defendant No. 1 claimed to be Kalipada and Sabitri Bala's adopted son and, as such, it was his responsibility to provide credible evidence to prove his adoption.

In the present case, ample proof was not on the record to acknowledge the defendant's argument No. 1, but the behavior of the parties was inconsistent with the adoption, even after the supposed adoption. Therefore, the adoption of Defendant No. 1 could not be proven in the absence of proof of the giving and receiving of the ceremony.

It had been established that the plaintiff is the owner of the premises of the suit and that defendant No. 1 had no right, title, and interest as a tenant in respect of the premises of the suit because his argument that he was the adopted son of Kalipada and Sabitri Bala had not been established.

The judgment and decree passed by the lower court of appeal were then set aside and those of the learned Munsif was restored. Thus, without, however, any order as to costs, the appeal is permitted.

Relevant Paragraphs:

Considering the scope of the Hindu Adoptions and Maintenance Act, 1956, some provisions. It was provided that the said Act would have an overriding effect under Section 4 of the said Act and the said Act supersedes the pre-existing Hindu law of adoption as found in any Hindu text, rule or interpretation, or any custom or use as part of Hindu law. The conditions for a legitimate adoption were stated in Section 6 of this Act. It was given that the adopter should have the ability and the right to adopt; that the person giving the child at the time of adoption should have the capacity to give the child at the time time of adoption; that the adopter is capable of being taken at the time of adoption; that adoption should also comply with the other conditions referred to in that Act. Section 7 of the Act deals with the right to adopt a Hindu man.

Legal adoption can take place only if the ability and the right of the adopter exist, and the adoption will be invalid in the absence of either. Section 9 lists the individuals who are willing to give in acceptance. Four conditions for an individual to be adopted are laid down in Section 10 of that Act. All other conditions under the old Hindu Law have been granted a go bye in that view of the matter.

In the lower appellate court, the learned judge held that the defendant No. 1 was the adopted son of Kalipada and Sabitri Bala, but there was no consistent evidence on record of such recognition. It had not been confirmed that Kalipada and Sabitri Bala were given and approved for adoption by defendant No. 1. The individuals present at the time of adoption did not present themselves for deposition. In my opinion, defendant No. 1 failed to prove legitimate adoption in compliance with the Hindu Adoptions and Maintenance Act, 1956. The parameters of the Act. More precisely, it has not been created, as referred to in Section 11(vi) of that Act. Foster's son and adopted son are not in the same place.

In the matter of his supposed adoption by Kalipada and Sabitri Bala, Defendant No. 1 had failed to satisfactorily justify the presence of suspicious circumstances. The learned judge in the lower appellate court should not have embraced the claims of defendant No. 1 immediately in the absence of proper proof and should not have held that the adoption had taken place. While religious ceremonies are not required for adoption, a formal giving and taking ceremony must be created. Defendant No. 1 claimed to be Kalipada and Sabitri Bala's adopted son and, as such, it was his responsibility to provide credible evidence to prove his adoption. In the present case, ample proof was not on the record to acknowledge the defendant's argument No. 1, but the behaviour of the parties was inconsistent with the adoption, even after the supposed adoption.