Tara Chand Jain (Deceased) ... vs Attar Chand Jain (Deceased) ...
2005 Latest Caselaw 1418 Del

ORDER

J.P. Singh, J.

1. This Regular Second Appeal has been preferred against the judgment dated 8.7.1988 passed by the first Appellate Court reversing the judgment and decree dated 8.10.1984 passed by learned Sub-Judge, Delhi. The Trial Court had dismissed the suit for possession of a room, filed by the respondent-plaintiff while the first appellate Court decreed the suit. The appellant-defendant has filed this Regular Second Appeal under Section 100 of the Code of Civil Procedure.

2. This appeal was admitted on 3.2.1989. The questions of law were referred to in para-18 of the grounds of appeal. Additional questions of law were also allowed. The same are as under:

1. Whether the plaintiff/respondent was validly given in adoption when he was not put in the lap of the alleged adoptive father by his mother?

2. Whether the finding of the learned District Judge that the plaintiff-respondent was given in adoption with the consent of his mother is not supported by any evidence on record?

3. Whether the learned Additional District Judge could infer consent of mother to giving in adoption from her alleged presence in upper floor Zenankhana while adoption is said to have taken place in ground floor, when no such case was set up in pleadings?

4. Whether the learned Additional District Judge has misread the evidence and has ignored important piece of evidence?

5. Whether the learned Additional District Judge has not examined the evidence about adoption and its validity from correct legal perspective?

6. Whether the alleged adoption which changes right of heritance in the property can be inferred when neither the date, month or year of the adoption is certain and when admittedly no relations of the parties though alive have been produced to prove it, when no contemporaneous evidence like change of father's name in school or college record after the alleged adoption has been made and when no documentary evidence at all in proof of the alleged adoption has been produced?

7. Whether non-consideration of the above important facts does not make the judgment of the learned Additional District Judge liable to be set aside on account of non-examination of the matter from correct legal perspective and being a judgment grossly unreasonable and unjust?

8. Whether finding of learned Additional District Judge is based on conjectures when he says that the defendant/appellant had pressurized his mother to depose falsely in the case denying adoption when suggestion that any such pressurization had taken place was not even given by the plaintiff respondent Smt. Rajjo Devi when she appeared as a witness?

9. Whether the judgment of the learned Additional District Judge, Delhi is not vitiated by the fact that he has considered that rent receipt PW-2/2 was obtained by the defendant/appellant from the plaintiff/respondent and no objection certificate for obtaining the water connection when said documents Were issued to another person who is tenant in the property and when admittedly the case of the plaintiff/respondent was that water connection was sought to be taken by the defendant/appellant without his consent?

10. Whether the respondent can be deemed in law to have been adopted by Sham Lal when admittedly the natural mother of the respondent did not give him in adoption to Sham Lal at the time of ceremony of giving and taking and no evidence of any agreement between her and adopted parents to give and receive the boy in adoption or evidence of any circumstances making it impossible for the mother to give the respondent in adoption has been produced.

11. Whether the findings of the learned Addl. Distt. Judge about adoption are based on inadmissible evidence or ignoring important evidence or misreading of the evidence.

3. Mr. G.K. Srivastava, learned Counsel for the appellant in addition to the above questions has again sought permission to amend the grounds of appeal about the validity of adoption of plaintiff by his maternal grandfather but, in fact, the said question is already covered in questions 1, 2, 3, 10 and 11 mentioned above and both the subordinate Courts have discussed this question in issue No. 3.

4. I may mention that during pendency of this litigation both the original parties have expired. LRs were brought on record and even widow of the original respondent has expired but the matter is dragging on for 17 years.

5. I have, therefore, heard Mr. G.K. Srivastava, Advocate, learned Counsel for the appellant-defendant and Mr. V.B. Andley, Sr. Advocate, learned Counsel for respondent-plaintiff at length on merits. I have gone through both the judgments and the lower Court record.

6. Briefly the facts are that the plaintiff filed a suit for possession and prohibitory injunction in respect of one room on the second floor of House No. 1268, Vaidwara Street, Delhi as per attached site plan. The second prayer was for restraining the defendant from getting installed a separate water and electricity connection in his own name in the said room. The plaintiff had filed the suit as adopted son of late Lala Shyam Lal Jain, resident of House No. 1266/ 68, Vaidwara Street, Delhi. The plaintiff claimed to be the owner of the suit property as adopted son. The defendant was his natural brother. Natural father of the plaintiff had expired and his then young widow mother along with children had returned to her father. She started residing in one room on the ground floor of the aforesaid house. The defendant grew up in the said house. After his marriage he requested the plaintiff to permit him to reside in one room on the second floor of the said house which was lying vacant. The defendant had promised to make his own arrangement as and when he would be asked to vacate. The plaintiff accommodated his brother on that assurance out of brotherly love and affection. The plaintiff then demanded vacation of the said room. But the defendant kept evading the said demand of the plaintiff rather obtained an order for installation of independent water meter in his own name from the Municipal Corporation of Delhi. When the independent meter was being installed there was allegedly some damage to the house, the plaintiff protested and reported the matter to the police. Further, it was alleged that the defendant was also trying to get separate electricity connection and was trying to secure his contumacious and independent possession. In this background, the plaintiff sent a notice dated 11.11.1969 under registered cover and then filed the suit on 5.1.1973.

7. The defendant denied that the plaintiff was adopted son of late Lala Shyam Lal Jain, and denied the validity of adoption and thus the locus standi of the plaintiff. It is alleged that their mother became widow during the life time of her father late Lala Shyam Lal Jain and as widow, she came to reside with her father in House No. 1266/68, Vaidwara Street, Delhi. The defendant was born two months after the death of his father and since then he was living in the said house. Therefore, the question of plaintiff allowing them to live in the house did not arise and the defendant is living there in his own rights and in the alternative by adverse possession having become owner absolutely. The defendant alleged mat since the plaintiff was creating problems regarding the use of water by the defendant, he opted to have a separate connection. He also alleged that he had occupied the room on second floor during the lifetime of late Lala Shyam Lal Jain and that the notice was duly replied to.

8. In the replication, it is averred that the defendant was not born in the house in dispute. The defendant, his mother Smt. Rajjo Devi and the plaintiff prior to the adoption of the plaintiff had jointly inherited the house in Katra Mashru, Dariba Kalan, Delhi being an ancestral property, which after adoption of the plaintiff completely vested in the defendant and his mother Smt. Rajjo Devi to the exclusion of the plaintiff and thereafter the defendant and his mother Smt. Rajjo Devi became sole owners of the said property. It was pleaded in the replication that the plaintiff as adopted son, inherited all the properties of late Lala Shyam Lal Jain and he had been exclusively dealing with the said properties as an absolute owner to the knowledge of the defendant and his title was never questioned by anybody and that the defendant was estopped from raising the plea of adverse possession.

9. In reply to the additional pleas, it was alleged that late Lala Shyam Lal Jain had left two widowed daughters-in-law, namely, Smt. Batto Devi and Smt. Krishna Devi. The said daughters were alive at the time of death of Lala Shyam Lal Jain.

10. It is denied that defendant and his mother were living as owners and that plaintiff being the elder brother was managing the properties. It is reaffirmed that the plaintiff was dealing with all the properties of late Lala Shyam Lal Jain including the property in question as legal heir and absolute owner after death of late Lala Shyam Lal Jain. On the pleadings of the parties, the following issues were framed:

(i) Whether the suit is maintainable in the present form?

(ii) Whether the suit is correctly valued for the purpose of Court fee and jurisdiction?

(iii) Whether the plaintiff is the exclusive owner and in possession of the suit property?

(iv) Whether the defendant was allowed by the plaintiff the permissive use of one room on the second floor in the suit property?

(v) Whether the defendant was become the owner by adverse possession of the premises in his possession? On issue No. 1, the learned trial Judge opined that the issue has become redundant after amendment of the plaint.

11. On issue No. 2, since no evidence was led by the defendant the same was decided in favor of the plaintiff. On issue No. 3, the learned trial Judge framed two questions:

1. Whether plaintiff is the adopted son of late Shri Lala Shyam Lal Jain?

2. Whether the plaintiff is the owner of the premises in question as the adopted son of late Shri Lala Shyam Lal Jain?

12. After discussing the evidence and contentions of learned Counsel for the parties the learned trial Judge noted that the plaintiff was put in the lap of late Lala Shyam Lal Jain by the uncle (younger brother of late Lala Shyam Lal Jain) of the plaintiff. At that time father of the plaintiff was not alive. However, the mother of the plaintiff, testified in the Court that she had not given the plaintiff in adoption to late Lala Shyam Lal Jain (her father) nor did she give consent for adoption. The trial Court referred to an award Ex. PW9/1 dated 8.4.1953, registered on 15.5.1993, which was filed in Court is another dispute with widow daughter-in-law of Late Lala Shyam Lal Jain. In the recitals of this award the plaintiff is mentioned as adopted son of late Lala Shyam Lal Jain. The adoption had taken place in the year 1936. Therefore, the trial Court discussed about the Mitakshra Hindu Law which governs the parties and was of the view that plaintiff could not be given in adoption by his uncle. The right to give in adoption was confined to the father and after his death may be to the mother and none else. The trial Court also discussed the probative value of the award Ex. PW 9/1 and its recitals and gave a finding that the arbitrator had no personal knowledge about the adoption and the award was not inter-parties, therefore, the recitals were of no help to the plaintiff. It may be mentioned that under the said award Smt. Krishna Devi who was widow daugher-in-law of late Shyam Lal Jain had relinquished her right in the suit property in favor of the plaintiff, against monthly maintenance to be paid by the plaintiff. On these points the trial Court held that the plaintiff was not the owner of the property in question and decided the issue in favor of the defendant.

13. On issue No. 4, the learned trial Judge held that the defendant was born in the house in question and that his mother was also residing in the said house. She had become a widow at young age and had come to live with her father along with children. She started residing in one room on the first floor. The trial Court opined that, therefore, there was no question that the plaintiff had allowed the defendant to use one room on the second floor as a licensee (after marriage of defendant). The learned trial Judge finally decided the issue in favor of the defendant.

14. On issue No. 5, the Court opined that since plaintiff was not held to be adopted son of late Lala Shyam Lal Jain and the plaintiff could not prove that he was in exclusive possession of the house in question, therefore, the defendant need not prove that he was the owner by adverse possession because the said right is available only against the true owner, therefore, the said issue was left undecided and finally the suit was dismissed.

15. On first appeal on issue Nos. 3 & 4, the first appellate Court after referring to the facts of the case, re-appraised the evidence. On the point of giving and taking of the plaintiff in adoption, the first appellate Court was of the view that Sh. Prem Chand Jain, father of the plaintiff and defendant, had expired. His brother Lala Nem Chand had given the plaintiff in adoption on delegation of power by Smt, Rajoo Devi, mother of the parties and opined on the basis of precedents that the physical act of giving in adoption could be delegated and it has come on record that the mother was also present in that function of giving and taking the plaintiff in adoption. She actually did not give in adoption but her presence is proved and also gave weightage to the award Ex. PW 9/1 observing that it was an accepted fact in the Biradari (community) that plaintiff was adopted son of late Lala Shyam Lal Jain because in the award Smt. Krishna Devi who relinquished her right in favovir of the plaintiff was none else but daughter-in-law of late Lala Shyam Lal Jain. Thereafter the mutation was also done in the Municipal records. The plaintiff was admittedly openly realizing rents from the tenants and was dealing with all the properties of late Lala Shyam Lal Jain, as owner. He had also sold some of the properties inherited by him from late Lala Shyam Lal Jain. So much so that the defendant also took a rent receipt from the plaintiff for obtaining an independent water connection from MCD and no objection certificate was also issued by the plaintiff so that defendant could get independent water connection. The alleged ownership of defendant by adverse possession was against the very pleadings of the defendant. The judgments regarding a presumption of validity of adoption in case of old adoptions and delegation of power to give in adoption have been relied upon by the appellate Court and accordingly the first appellate Court reversed the findings of the trial Court on Issue No. 3.

16. The first appellate Court also noted that plaintiff had not inherited any property of his natural father and opined that it was family's internal affair and it was very probable that defendant, being natural brother of the plaintiff, was accommodated temporarily by the plaintiff after his marriage, on the second floor in one room as a gesture of love and affection and that can only give the status of a licensee to the defendant and cannot make him owner of the property. In the result the finding on Issue No. 4 was also reversed and finally the judgment of the Trial Court was set aside. The first appeal was accepted and the suit for possession was decreed.

17. I have gone through the questions of law proposed by the appellant. Substantial questions of law were not formulated by the High Court and only a reference was made to the questions mentioned in para 18 of the grounds of appeal and additional grounds in the order dated 3.2.1989. Perusal of the above said proposed questions, shows that the same only have been repeated and multiplied and since the regular second appeal has already been admitted without formulating substantial questions of law now there is no option but to decide this appeal on merits. In my view, the only question (not substantial questions of law) that can arise in this matter is, "whether the adoption was valid?"

18. I have re-apprised the evidence of the parties. PW-1 is Shri Harikishan Jain aged 73 years (at the time of his statement). He is a member of "Shri Parachari Aggarwal Digambar Jain Panchayat (Regd.)". He has deposed that his duty was to inform the "Biradri" (community) members on any marriage or other occasions and accordingly he had invited the members of the "Biradri" at the time of adoption ceremony. His statement was recorded in October, 1970. He deposed that about 35-36 years ago plaintiff was given in adoption by his father's younger brother Shri Nem Chand to Lala Shyam Lal because father of plaintiff had expired. A ceremony was performed for the said adoption. PW-4 Shri Kundan Lal was aged 64 years at the time of his statement. He has also deposed that he Was member of "Shri Parachari Aggarwal Digambar Jain Panchayat" and attends the Biradri functions and also deposed that about 35-36 years ago plaintiff was given in adoption to Shri Shyam Lal Jain and the property of Lala Shyam Lal Jain belonged to the plaintiff. PW-5 is Shri Chuni Lal Jain, Advocate. He new the family for last about 40 years (at the time of given evidence in 1975) and deposed that plaintiff Tara Chand was adopted as a son by his maternal grandfather Lala Shyam Lal Jain in 1935-36. He further deposed that Lala Shyam Lal Jain had two sons and two daughters-in-law. He had no grand-son through his sons. Both his said sons had predeceased him and he was not having any living son. The ceremony took place in the inner courtyard at the ground floor and only gents were present on the ground floor. The ladies were on the balcony overlooking the inner courtyard. He further deposed that in a dispute between one of the widowed daughters-in-law of Lala Shyam Lal Jain, namely Smt. Krishna Devi and the plaintiff, he had acted as an arbitrator (in the year 1953) and had given award Ex. PW-9/1 which was a sort of compromise between the plaintiff and the Smt. Krishna Devi. In that award plaintiff was mentioned as adopted son of Lala Shyam Lal Jain and the plaintiff agreed to give monthly maintenance to Smt. Krishna Devi and it was accepted that the property (in question) belonged to the plaintiff. Besides this oral evidence there is documentary evidence such as house tax in the name of plaintiff, three tenants paying rent to the plaintiff, electricity and water connections in the name of the plaintiff and there is another important piece of evidence which was obtained by the defendant from the plaintiff because the defendant wanted to have a separate water meter. The defendant got just one rent receipt from the plaintiff and a no objection certificate from the plaintiff for getting separate water connection and made an application to the MCD Ex. PW-2/1 in which he himself mentioned the plaintiff as owner of the property which documents show that the defendant also had accepted the plaintiff as owner of the property of Late Lala Shyam Lal Jain, which by itself is an implied admission of defendant that plaintiff was adopted son of late Lala Shyam Lal Jain.

19. Hardly anything in cross-examination in favor of the defendant could be extracted from the said three witnesses and all of them in one voice deposed about the adoption and they all belong to the Jain community and two of them are members of the "Shri Paracheri Aggarwal Jain Panchayat (Regd.)". In my mind there is no doubt that they were very respectable and responsible members and were elders of the Jain Community in Delhi.

20. As against this, we have the statement of Smt. Rajjo Devi mother of the parties, who has tried to support the defendant. She has stated in the Court that she and her son (defendant) were living in the disputed house as it belonged to her father. Her husband Shri Prem Chand Jain owned a house in Katra Mashru, Dariba Kalan, Delhi. She and her son Om Prakash Jain and defendant Tara Chand Jain were the joint owners of that house. There are tenants living in the said house either she or her sons issue rent receipts. She said that plaintiff being elder was managing the properties (of late Lala Shyam Lal Jain) and she did not now whether the entire properties of her father Lala Shyam Lal Jain have been mutated in the name of the plaintiff. She admitted that the tenants living in the disputed house are paying rent to the plaintiff and she and her son never objected to the same.

21. Defendant has also entered the witness box and stated that he was residing in the house as owner. He gave statement on the lines of his written statement. He said that prior to the filing of the present suit by the plaintiff he was using water from the common tap. But since the plaintiff objected to the said use, therefore, he had applied for separate water connection. He admitted that all the properties which were owned by late Lala Shyam Lal Jain are with the plaintiff and that Lala Shyam Lal Jain also executed a gift deed in favor of the plaintiff which is Ex. DW-2/A. He admitted that he never raised any objection asserting his right to the property, through out his life. He also admitted that both the sons of late Lala Shyam Lal Jain had pre-deceased him. He further admitted that he and his mother alone receive rent from his father's house at Katra Mashru and impliedly admitted that the plaintiff had no right in the said house. The statement of the defendant read with the No Objection Certificate issued by the plaintiff regarding new water connection and its use by the plaintiff in his application to the MCD for new water connection defeat his plea of owner by adverse possession. Defendant did not produce any member of the "Biradri" or any other public person who could deny the fact regarding adoption of the plaintiff.

22. The above evidence, in my view, leaves not even an iota doubt that the plaintiff has been able to prove that he was adopted according to custom and religious ceremonies by his maternal grand-father in the presence of Biradri (community) and also in the presence of his mother and the defendant.

23. It is well known that in old Hindu families (in the year 1930s in this case) the ladies normally did not and even now do not appear before the males, specially elders and keep Parda (Ghunghat). Mother of the plaintiff, however, was present on the first floor among the other ladies of the family when the adoption ceremony was being performed. She was watching the ceremonies from upper ground floor balcony overlooking the courtyard. If she was against the adoption, she could raise a hue and cry. There is another important factor that her husband had expired and she was to bring up her children under the care of her father. Therefore, there was all probability that she herself decided to give her one sons (plaintiff) to her father late Shri Lala Shyam Lal Jain whose own son had expired. It is quite natural that being blood relations, Smt. Rajjo Devi who had come to the house of her father after the death of her husband was given a room on first floor and when her son got married, he required another room. Smt. Rajjo Devi has admitted that earlier her sister-in-law used to live in the room in question and she died after the death of late Lala Shyam Lal Jain.

24. The circumstances of Smt. Rajjo Devi show that she was left with not sufficient sources of income after the death of her husband and was mainly dependent for her security and safety on her father. Her father had lost two sons. There were two widowed daughters-in-law. Her father had no living son nor a grandson through his own sons. In those circumstances of the family, it would have been a very happy occasion for her to have her son adopted by her father so that the entire properties of Lala Shyam Jain come to her natural son (plaintiff). Only then she could lead a secured life (otherwise the properties could go to paternal family of Lala Shyam Lal Jain). Since, her other son (defendant) is likely to be ousted from the house and there are some bitter feelings between her and the plaintiff on this account, therefore, she obviously thought it better to support her son defendant rather than the plaintiff who was given by her in adoption. The defendant has made only a self-serving statement without any supporting evidence from anybody. In the cross-examination the defendant and her mother have almost admitted the fact that for all intents and purposes, the plaintiff was the absolute owner of the property. It has been mentioned in the grounds of appeal that if the plaintiff had himself given no-objection certificate to defendant for separate water connection, then why he was opposing the installation of water meter. The explanation has come from the plaintiff that the defendant was causing damage to the property and was trying to create evidence to claim ownership.

25. Now, the question arises about the validity of the adoption. This point was covered in Issue No. 3, which has been decided by the Trail Court in favor of the defendant but that finding has been reversed by the first Appellate Court.

26. Learned Counsel for the appellant has attacked the adoption by emphasizing over and over again that under the old Hindu law, the plaintiff being son of the daughter could not be adopted because Lala Shyam Lal Jain could not have married his own daughter. At first blush, it appears startling because it appears to be a clear violation of the old Hindu law even if it is said that the adoption took place before coming into force of the Hindu Adoption and Maintenance Act, 1956. The learned Counsel for the appellant has emphasized that according to all schools of thought on adoption, the settled position is that (i) daughter's son, (ii) sister's son or (iii) mother's sister's son could not be adopted and has referred to the judgment titled Lala Babu Ram v. Smt. Kishan Devi (Lucknow Bench DB). On the validity of adoption, the Court opined as under--

There can be no manner of doubt that both from the texts of Dattak Chandrika and Dattak Mimansa it is clear that the rule that one whose mother the adopter could not marry could not be adopted in the regenerate classes is not confined only to the case of a daughter's son, a sisters son and the mother's sister's son. The words "reflection of a son" in the rule in Saunaka's text which requires that the child to be adopted should be such as may be looked upon as the "reflection of a son" (Putrachayavaham) deals with the qualification of the boy to be adopted and is not merely descriptive of the boy after adoption. Hence any one, even other than a daughter's son, a sister's son or the mother's sister's son, whose mother the adopter could not marry, cannot be adopted. There is nothing in Manu Smiriti which is inconsistent with this proposition laid down by Dattak Chandrika and Dattak Mimansa.

and further opined as under:

There can be no estoppel against law. Therefore, when an adoption is not legally valid no conduct can estop an interested person from challenging the validity of the adoption.

27. Moreover mere participation in the ceremonies of adoption in the absence of evidence showing consent to such adoption, or acts subsequent to such adoption not leading to the adoption, cannot estop a person from challenging the validity of the adoption.

28. I shall simply say that this case did not relate to Aggarwal Jain Community of Delhi, but pertained to Rastogi community where there was no custom of adopting sister's son. Therefore, the said judgment is not applicable to the facts of the case before this Court. The next ruling is titled Baba Kartar Singh Badi v. Dayal Das . In the said case, on the one hand, there were the occupants of the property of a Hindu Shrine at Haridwar and on the other hand, there was an adopted "Chela" by the lady of the Mahant. The said lady was empowered vide a Will, by the Mahant to appoint a "Chela" if his own "Chela" expired, and in fact his own "Chela" expired. In my view, the said ruling is not attracted to the facts of the case before this Court. The next judgment is titled Hari Dass Chatterjee v. Manmatha Nath Mallik, reported in 1937 (2) Calcutta India Law Reports 265. In this case also there was a question of adoption. It was held in the said judgment that "a Hindu of the regenerate class cannot adopt a person whose mother the adopter could not have legally married. In particular, under the Bengal School of Hindu law, the adoption of a brother's daughter's son is invalid". And further held "A person who is not validly adopted does not lose his rights in his natural family and acquires none in the family of adoption". That was a case of adoption of a brother's daughter's son and the case related to the twice born (high caste) community of Bengal.

29. In all the above referred judgments, the old law of adoption has been thoroughly discussed but the communities, the customs and the facts differ. None of these cases relate to Aggarwal Jain Communities, in and around Delhi. Therefore, the said judgments are of no help to the appellant. Even in the above said rulings the adoptions through customs have been accepted.

30. As against this, learned Counsel for the respondent has cited the case titled "Madan Gopal v. B. Mukand Lal" reported in AIR 1959 Punjab (DB). In the said matter also the question of adoption inter alia arose in Issue No. 19 which was framed as under:

"Has defendant 2 any right to inherit the property left by Ratta Mal deceased in face of his adoption by Jiwan Ram?"

31. Defendant No. 2, namely Kunj Lal was alleged to have been adopted by his maternal uncle Jiwan Ram in 1905 during the lifetime of Rattan Mal. Kunj Lal defendant No. 2 had admitted that he was adopted by Jiwan Ram but at the same time claimed that his adoption was in "Kritma" form and not in "Dattaka" form and alleged that he had not lost rights in the property of his natural father on account of said adoption and in this way claimed share from the property of his natural father, as a matter of right.

32. This was a case of adoption of sister's son and therefore, it was alleged by the adoptee himself that he could not be adopted because his mother could not have married her brother, as is somewhat the case before this Court. The adoptive Kunj Lal defendant No. 2 was himself saying so. The DB after exhaustively examining the law opined otherwise. I would like to quote the following paragraphs from the said judgment--

"Validity of adoption of a daughter's son among the Khatris of the town of Amritsar has also been recognised by custom as is clear from Parma Nand v. Shiv Charan Das, 2nd 2 Lah 69: (AIR 1921 Lah 147) and Roshan Lal v. Samar Nath, 2nd (1938) 19 Lah 173: (AIR 1937 Lah 626). in Mt. Ballo v. Ram Kishan AIR 1924 All 49, similarly the adoption of a daughter's son amongst Aggarwala Vaishas has been upheld and while dealing with this question, the learned Judges observed that in the Wajib-ul-Arzes relating to a number of villages general custom to adopt a daughter's son or sister's son had been relied upon."

33. In Ramalinga Pillai v. Sadasiva Pillai, 9 Moo Ind App 506 (510) (PC), the adoption of a sister's son by a Vaisya was upheld by the Judicial Committee of the Privy Council. The parties to the reported case undoubtedly belonged to South India but the following observations from the judgment of the Judicial Committee are instructive:

"If the genuineness of the depositions is established, of which their Lordships entertain no doubt, they are decisive of the case. In them the appellant's father three times deliberately styles the respondent an adopted son. Now, if there were no adoption at all, or if the actual adoption were for any reason legally invalid, the respondent would of course not be entitled to that designation. They amount, therefore, to a complete admission of the whole title of the respondent, both in fact and in law, and show that the objections which have been urged to his claim, in the opinion of the appellant's father, who probably was well acquainted with all the circumstances, and may be assumed to have known the Hindu laws and customs, had no foundation."

34. In the present case Kunj Lal, the adoptee, and his brothers "Mukand Lal and Shyam Lal, the plaintiff's father" are all lawyers and as such can, in my opinion, be reasonably assumed to know the rules of Hindu law and Custom on the question of adoption as applicable to them, and they all have been considering the adoption in question to be valid. The learned Counsel has also referred to Dhanraj Joharmal v. Soni Bai , where it has been held that adoption amongst Jains and Aggarwals is a mere temporal act.

And further held as under:

This makes it clear that the conditions of adoption under the Mitakshara law are completely superseded by the customary law, and there is no reason for excluding an orphan under the letter but, if it were necessary, their Lordships agree with the High Court that the evidence in the present case is sufficient to place the validity of the adoption of an orphan beyond question.

35. It is admitted that defendant 1 does not belong to the same gotra as Khushal Singh, and the appellants found on answer 174 in Riwaj-i-Am of 1880. No such restriction is suggested in the manual of 1911. But answer 174 of 1880 appears to make clear, by the second example in the column of particulars, that it is only a recommendation that they should be of the same gotra, and that a person of a different gotra may be adopted; in other words, factum valet.

36. Their Lordships are therefore, of opinion on the whole matter, that the adoption of defendant 1 was valid, and that the appellant's appeal fails. This passage was quoted with approval by this Bench in Data Ram, etc. v. Teja Singh, etc., . Not a single ruling has been brought to our notice on behalf of the respondents showing that the adoption of a sister's son amongst the Aggarwals or for the matter of that, amongst any other parties from the area roundabout Delhi was ever declared invalid. I would, therefore, be inclined to hold that the adoption of Kunj Lal by Jiwan Ram is not invalid.

37. In the next judgment titled "Jokinandant Ayodhya Prasad v. Rikhi Ram" , again the question arose about the adoption of sister's son by Aggarwal Jains and while discussing the various judgments the custom of adoption of daughter's son, was also dealt with. The DB opined and held as under:

"...I need hardly refer to Bawa Singh v. Mst. Taro 1950 Pun LR 369: (AIR 1951 Simla 239), and Sugan Chand Bhikamchand v. Mangibai Gulabchand AIR 1942 Bom 185 which also lay down that a custom repeatedly recognised by Courts need not be proved in each case.

In the light of these authorities it is urged on behalf of the respondent that it was for the defendants to allege and prove applicability of strict text of Hindu Law and that in the absence of such a plea the rule of adoption as recognised in Madan Gopal's case must be applied. Reference in this connection has also been made to para 37(a) of Rattigan's Digest which lays down that a daughter's or a sister's son amongst Hindu non-agriculturists is generally recognised as a proper person to be appointed.

The Counsel has in this context emphasised that this Digest has been held even by the Supreme Court to be a book of authority. Ram Samp v. Mst. Jai Devi, AIR 1946 Lah 272 has been relied upon for preposition that adoption of a daughter's son, though not permissible under strict Hindu Law, is valid under custom in the districts of the old Delhi territory...."

The last two judgments directly apply to the facts and circumstances of the case before this Court.

38. Considering all the facts and circumstances and the law, I am of the view that the learned trial Judge was in error and the first Appellate Court after re-appraisal of the entire evidence and the law applicable to the Aggarwals/ Jains in Delhi has rightly reversed the judgment of the trial Court and has rightly decreed the suit. In the result, the appeal is dismissed. Parties are, however, left to bear their costs.

CM. No. 1958/2005

Allowed.

CM. No. 1959/2005

Already dealt with in RSA and hence does not survive.