# DEBI PRASAD (DEAD\ RV L.RS v. TRIBENI DEVI AND ORS

- **Citation:** [1971] 1 S.C.R. 101
- **Court:** Supreme Court of India
- **Decided:** 1970-03-18
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/debi-prasad-dead-rv-l-rs-v-tribeni-devi-and-ors-5011
- **Pages:** 11

## Headnote

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DEBI PRASAD (DEAD\ RV L.RS.
v.
TRIBENI DEVI AND ORS.
March 18, 1970
(J,. C. SHAH AND :K. S. HEGDE, JJ.l
Hindu Law-Acll1ptiou-Burden pf Proof.
The appellant file<l a suit in 1946 claiming to be the nearest heir to hfa.
mntcm.al uncle-0, who died in 1934.
S--defend~n\ no. l (the predece8sar bf the respondents) resiStcd the suit on the ground that he .had been
adopted by G on the very day he was born in 1892.
Close relations of
the wife of G
deposed
that after the bi·rth
of S, the wife of G
took
him
to
her
paternal
home
where
Paon
Pheri
ceremony
was performed, as was cu~omary in that family.
The application
for
admi,sion to the school recited that S was the son of G, and it \Vas signed
)y G.
G deposl'!d before '<Courts that S was his son.
S filed a nomina·
tion paper. proposed by G mentioning that his ~father was G.
In income~
tax assessment \vhich proceeded on the basis that G and S
formed
a
H. U.F. of which G \va"Nhe'-karta, the professional income of S \vas added.
Thtn there were admissions of ...r.he appellant in Courts after the death of,
G that S \\-·as the proprietor of the firm of G.
Jn other appliCation for
transfers, the appellant described S. as son of G.
But there was a decree
of a Court in 1901. where S was
descrlbcd
as son of hfs natural father.~
1'hc trial court decreed the suit, but the I1igh Court reversed· that decree.
The High Court held on the evidence that S was validly adopted jJy_G,
though S had not been able to establish the custom pleaded bY~film~ ·nor
was he able to adduce any satisfactory evidence about the actual adoption
but he has protfuced considerable documentary evidence to show that G
~as treating him fqr over a quarter of century as his s6n; then there was
also .. plenty of reliable evidence to show that! close relations including the
app~llant lreated S as the son of G both during the li'fe time of G and also
thereafter till" about the time the suit was instituted.
'
HELD : A person who seeks to displace the natural succession to property by alleging an adoption must discharge the burden that lies upon
him by proof of the facr111n of adoption and its validity. Jn order that
an adoption may be valid under the Hindu law. ·there must be~ a formal
ceremony of giving and taking.
This is true of the regenerate castes as
well as df the Sudras.. Although no particular form is prescribed for the
ceremony, the law re~uired that the natural parent should hand over the
adoptive boy an<l the adoptive parent must receive him, the nature
of
the ceremony varying --aCt:"Ording to the circumstances. [105 A-DJ
Although the person who pleads that he had been adopted is bound to
ptove his title as adopted son, as a fact yet from the long period during
which he had been received as an adopted son, every allowance for the
absence of evidence to prov~ch '"fact was to be favourably entertained.
The case was analogous to'):I'J"d't in. which the legitimacy of a person in
possession had been acquiesced jn for a considerable time, 3nd a'fterwards
impeached by a party, who had a right to question the legitimacy, where
the defendant, in order to defend his status. is allowed to invoke against
the claimant every presumption which a·rises from long recognition of his.
!Of'
1e2
SUPREME COURT REPORTS
[1971] l S.C.R.
.legitimacy by members of his family. In the case of a Hindu long rccoguition as an adopted son, raised even a stronger presumption in favour a·._
the validity of his adoption, arising from the possibility of the loss of his
rights in his own family by being adopted in another family.
In the
absence of direct evidence much vatue has to be attached to the fact that
the alleged adopted son had without controversy succeeded to his adoptive 'father's estate and enjoyed till his death and that documents during
his life and after his death were framed upon the basis of the adoption.
[106 B-Fl
On the evidence, S was the adopted son of G and there was nothing
to show that the said adoption was invalid for any

## Text

A •
R
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E
F
G
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DEBI PRASAD (DEAD\ RV L.RS.
v.
TRIBENI DEVI AND ORS.
March 18, 1970
(J,. C. SHAH AND :K. S. HEGDE, JJ.l
Hindu Law-Acll1ptiou-Burden pf Proof.
The appellant file<l a suit in 1946 claiming to be the nearest heir to hfa.
mntcm.al uncle-0, who died in 1934.
S--defend~n\ no. l (the predece8sar bf the respondents) resiStcd the suit on the ground that he .had been
adopted by G on the very day he was born in 1892.
Close relations of
the wife of G
deposed
that after the bi·rth
of S, the wife of G
took
him
to
her
paternal
home
where
Paon
Pheri
ceremony
was performed, as was cu~omary in that family.
The application
for
admi,sion to the school recited that S was the son of G, and it \Vas signed
)y G.
G deposl'!d before '<Courts that S was his son.
S filed a nomina·
tion paper. proposed by G mentioning that his ~father was G.
In income~
tax assessment \vhich proceeded on the basis that G and S
formed
a
H. U.F. of which G \va"Nhe'-karta, the professional income of S \vas added.
Thtn there were admissions of ...r.he appellant in Courts after the death of,
G that S \\-·as the proprietor of the firm of G.
Jn other appliCation for
transfers, the appellant described S. as son of G.
But there was a decree
of a Court in 1901. where S was
descrlbcd
as son of hfs natural father.~
1'hc trial court decreed the suit, but the I1igh Court reversed· that decree.
The High Court held on the evidence that S was validly adopted jJy_G,
though S had not been able to establish the custom pleaded bY~film~ ·nor
was he able to adduce any satisfactory evidence about the actual adoption
but he has protfuced considerable documentary evidence to show that G
~as treating him fqr over a quarter of century as his s6n; then there was
also .. plenty of reliable evidence to show that! close relations including the
app~llant lreated S as the son of G both during the li'fe time of G and also
thereafter till" about the time the suit was instituted.
'
HELD : A person who seeks to displace the natural succession to property by alleging an adoption must discharge the burden that lies upon
him by proof of the facr111n of adoption and its validity. Jn order that
an adoption may be valid under the Hindu law. ·there must be~ a formal
ceremony of giving and taking.
This is true of the regenerate castes as
well as df the Sudras.. Although no particular form is prescribed for the
ceremony, the law re~uired that the natural parent should hand over the
adoptive boy an<l the adoptive parent must receive him, the nature
of
the ceremony varying --aCt:"Ording to the circumstances. [105 A-DJ
Although the person who pleads that he had been adopted is bound to
ptove his title as adopted son, as a fact yet from the long period during
which he had been received as an adopted son, every allowance for the
absence of evidence to prov~ch '"fact was to be favourably entertained.
The case was analogous to'):I'J"d't in. which the legitimacy of a person in
possession had been acquiesced jn for a considerable time, 3nd a'fterwards
impeached by a party, who had a right to question the legitimacy, where
the defendant, in order to defend his status. is allowed to invoke against
the claimant every presumption which a·rises from long recognition of his.
!Of'
1e2
SUPREME COURT REPORTS
[1971] l S.C.R.
.legitimacy by members of his family. In the case of a Hindu long rccoguition as an adopted son, raised even a stronger presumption in favour a·._
the validity of his adoption, arising from the possibility of the loss of his
rights in his own family by being adopted in another family.
In the
absence of direct evidence much vatue has to be attached to the fact that
the alleged adopted son had without controversy succeeded to his adoptive 'father's estate and enjoyed till his death and that documents during
his life and after his death were framed upon the basis of the adoption.
[106 B-Fl
On the evidence, S was the adopted son of G and there was nothing
to show that the said adoption was invalid for any reason.
While con-
·sidering the question of the proof of adoption pleaded. the 'fact that the
suit was filed nearly 54 years after the alleged adoption had taken place
must be borne in mind.
Therefore, naturally it was extremely difficult
for the adopted son to adduce any .oral evidence in proof of that adoption.
Addagada Raghavamma and anr. v. Addagada Chenchc11nma and en~.
:[1964] 2 S.C.R. 933; Lakshman Singh
Kothari v. Sml. Rup Kanwar
[19621 I S.C.R. 477; applied.
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Rajendrao Nath Holder v. Jogendro Nath Banerjee and ors. 14,
Moore's Indian Appeals p. 67, approved.
D
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 707 o-f
1966.
Appeal by special leave from the judgment and order dated
January 20, 1965 of the Allahabad High Court, LuckPow Bench
in First Appeal No. 67 of 1948.
V. S. Desai and K. P. Gupta, for the appellant.
A. K. Sen, E. C. Agrawala, S. R. Agarwala a,nd P. C. Agar-
·wala, for respondent Nos. 1 to 6.
The Judgment of the Court wa~ delivered by
Hegde, J.-In this appeal by special leave though number of
, contentions were taken we have not thought it necessary to go into
all of them as in our judgmentHigh Court's conclusion that Shyam
Behari Lal (1st defendant) had been validly adopted by Gopal Das
is well founded.
The suit from which this appeal arises is for possession of the
suit properties on the basis of title. The 1st plaintiff Debi Prasad
claims title to the properties as the nearest heir to Gopal Das, his
maternal uncle who died in 1934. The 2nd plaintiff is an alienee
from the 1st plaintiff.
In order to properly understand the controversy in the present
case, it is necessary to have before us the family pedigree. The
. admitted ped~ree is a§. shown below :
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DEBI PRASAD v. TRIBENI DEVI (Hegde, J.)
LAJJA RAM
I
Kooramal (died in 1874)
I
103
I
Jedar N1th
(died in 1897)
Hilalal (died
during his
father's life
time)
I
Laddoomal
(died
issueless
Ra mass
Dwaramal
alias
Dwarkadas
(died in
1885)
\
~ha!lllllm•l
died in 1923
Is
Ra.
·
mt.
J Rani
(died childless
19# or 1945)
in 187))
olt wife
died i~
1874)
S~t. Misro
(died in 1917)
· sJanker Sahai
(died in
1929)
Jantoo Mal
-(died iri
1897) at
age 25 or 27.
I
.
Smt. Kaush1Ha
(dead)
I
Manohar Das
(alive)
I I
(2nd wife)
I
Shy~m Behari
Lal
(adopted bi
Gopal Das)
deft. No. 1
(other children
died during
minority),
Smt.1 Radhey Rani
Smt. Drupati
Mukut Bchari ·
.
L!tl
.
.• . !Def(. No. 2)
Govind Prasad
Ram Kumar
RamSwarup
Gopal Das
(died on
18-2-34)
I
Smt. Bhagwan
Dei
(died on
19-10-1934)
I
I
Smt. Kundan
(died in
1914)
Bag~umal
(died in 1932)
I
Debi Prasad
Plff., No. t.
·
I
M1·n1or
Minor son
~hesh Bchari
·.Ram P1rasa<I ·
(Deft. No. 3)
··. \
(Deft. No. 4).
(Pour other children
died 194041j
· ·
I
Smt. Shyamo
(died in
1923 or 1904)
I
.
Kedar Nath.
(died in 1925)
M I ·n·
asani
1n
(di<:d issuel~).
Jirior daughter
(all died befere 1890)
•
104
SUPREME COURT REPORTS
(1971] l S.CR.
The commrm ancestor of the family was Lajja Ram who died
in 1874. We are now concerned with the branch of Kedar Nath,
the father of Gopal Das who died on February 18, 1934. His
widow Bhagwan Dei died on October 19, 1934. The contention
of Debi Prasad is-that Gopal Das had separated from his family;
he died intestate and, therefore, being the nearest heir of Gopal
·Das, he is entitled to the properties left by Gopal Das. The plaintiff's claim was resisted by the !st defendant Shyam Behari Lal,
who claimed to be the adopted son of Gopal Das.
According to
Shyam Behari Lal, he had been adopted by Gopal Das .in about
the year 1892 when he was only an infant. He also resisted the
suit on the ground that Gopal Das was an undivided member of
his family and therefore the I st plaintiff in any event cannot claim
any right to the suit properties. His further contention was that
the 1st plaintiff was estopped from contending that he was not the
adopted son of Gopal Das.
Shyam Behari Lal died -luring the
pendency of the appeal before the High Court and hb legal representatives are contesting this appeal.
Debi Prasad also died
during the pendency of this appeal.
The trial court substantially
accepted the claim made in the plaint but in appeal the High
Court reversed the decree of the trial court and dismissed the suit.
The principal question that we have to decide in this case is
whether the adoption pleaded by_ Shyam Behari Lal i3 true and
valid.
According to Shyam Behari Lal. Gopal Das took him in
adopcion on February 8, 1892, on the very day he was born. He
mys that very soon after his birth, his natural parents handed him
over to Gopal Das and his wife who took him over as their adopted son and thereafter performed the necessary ceremonies according to the custom of their community.
He also pleaded that in
the community of Gopal Das, there is a custom of taking a child
in adoption on the very day of its birth. The plaintiffs have deni1 ed both the factum of adoption as well as the. custom pleaded.
We may at the very outset mention that Shyam Behari Lal
had not been able to establish the custom pleaded by hiin.
Nor
was he· able to adduce any satisfactory evidence about the actual
adoption but he has produced considerable documentary evidence
to show that (Gopal Das) was trea.ting him for over a quarter of
century aG his son.
There is also plenty of reliable evidence to
show that close relations of Gopal Das including Debi Prasad
treated Shyam Behari Lal as the son of Gopal Das both during the
life time of Gopal Das and also thereafter till about the time the
suit from .which this appeal arises was instituted.
As mentioned
earlier Gopal Das as well as his wife died in 1934 and the suit from
which this appeal arises was filed in 1946.
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DEBI PRASAD v. TRIBENI DEVI (Hegde, .T.)
105
While considering the question of proof of the adoption pleaded, we must bear in mind the fact that the same is
alleged to
have taken place in 1892 nearly 54 years before the present suit
was instituted. Therefore, naturally, it was extremely difficult for
Shyam Behari Lal to adduce any oral evidence in proof of that
adoption.
All the persons who could have known about thti
adoption are likely to have
died.
Shyam Behari .Lal himself
could not speak to that adoption.
His evidence is at best hear·
say. It is true, as observed by this Court in Addagada Raghayamma and anr. v. Addagada Chenchamma and anr. (') that it is
settled that (a perSO!\ who seeks to displace the natural succession
to property by alleging an adoption must discharge the burden
that lies upon him by proof of the factum of adoption and its
validity). Again as held by this Court in Lakshman Singh
Kothari v. Smt. Rup Kanwar( 2 ) that in order that an
adoption
may be valid under the Hindu law, there must be a formal cere·
money of giving and taking. This is true of the regenerate castes
as well as of the Sudras.
Although no particular form is pres·
cribed for the ceremony, the law requires that the natural parent
should hand over the a<;loptive boy and the adoptive parent must
receive him, the nature of the ceremony varying according to the
circumstances.
In the course of the judgment Subba Rao J. (as
he then was) who spoke for the Court quoted with approval the
following observations of Gopalchandra Sarkar in his book on
Hindu Law, 8th Edn.;
"The ceremonies of giving and taking are abso-
· lutely necessary in all cases.
These' ceremonies must
be accompanied by the actual delivery of the child;
symbolical or constructive delivery by the mere parol
expression of intention on the. part of the giver and the
taker without the presence of the boy is not sufficient.
Nor are deeds of gift and acceptance executed and
registered in anticipation of the intended adoption nor
acklowledgment, sufficient by themselves to constitute
legal adoption, in the absence of actual gift and acceptance accompanied by actual delivery; a formal ceremony t~ing essential for that pu::pose."
That is also the view expressed in Mayne's Hindu Law wherein it is observed that the giving and receiving are absolutely
necessary to the validity of an adoption; they are the operative
part of the ceremony. being that part of it which transfers the
boy from one family to another: but the Hindu law does not require that there shall be any particular form so far as giving and
acceptance are concerned: for a valid adoption all that the I~w
requires is that the natural father shall be asked by tne adoptive
(1) [1964] 2 S.CR. 933.
(2) [1962] 1 S.C.R. 477.
LI iS·ipCl-8
106
SUPREME COURT REPORTS
[1971] I S.C.R.
parent to give his son in adoption, and that the boy shall be handed over and taken for this purpose.
There is no doubt that the burden of proving satisfactorily
that he was given by his natural father and received by Gopal
Das as his adoptive son is on Shyam Behari Lal. But as observed
by the Judicial Committee' o.f the Privy Council in Rajendrao
Nath Holder
v.
Jogendro Nath Benerjee and ors. (1); that although the person who pleads that he had been adopted is bo1.Ind
. to prove his title as adopted son, as a fact yet from the long period
during which he had been received as an adopted son, every
allowance for the absence of evidence to prove such f~ct was to
be favourably entertained, and that the case was
analogous to
that in which the legitimacy of a person in possession had been
acquiesced in for a considerable time, and afterwards impeached
by a party, who had a right to question the legitimacy, where the
defendant, in order to defe,nd his status, is
allowed to invoke
against the chimant every presumption which arises from Jong
recognition of his legitimacy by members of his family; that in the
case of a Hindoo, long recognition as
an adopted son, raised
even a stronger presumption in favour of the validity of his adoption, arising from the possibility of the loss of his rights in his
own family by being adopted in another family.
In Rup Narain
and anr.
v.
Mst. Gc1;a/ Devi and ors.('), the Judicial Committee observed, that in the absence of direct evidence much ;alue
has to be attached to the fact that the alleged adopted son had
without controversy succeeded to his adoptive father's estate and
enjoyed till his death and that documents during his life and after
his death were framed upon the basis of the adoption.
A Division lBench of the Orissa High Court in Ba/inki Padhano and anr.
v. Govalkrisl111a Padhano and ors('); held that in the case of an
ancient 3doption evidence showing that the boy was ti ~atcd far
a long time as the adopted son at a time when there was no controversy is sufficient to prove the adoption although evidence of
actual giving and taking is not forthcoming.
We are in agreement with the views expressed in the decisions referred to above.
In the case of all ancient transactions, it is but natural that
positive oral evidence will be lacking.
Passage of time gradually
wipes out such evidence. Human affairs often have to be judged
on the basis of probabilities. Rendering of justice will become impossible if a particular mode of proof is insisted upon under all
circumstances. In judging whether an adoption pleaded has been
satisfactorily proved or not, we have to bear in mind the lapse of
time between, the date of the alleged adoption and the date on
which the concerned party is required to adduce proof.
In the
(I) 14 Moore's Indian Anpeals p. 67,
(2) 36 I.A. p. 103.
13) A.1.R. 1964 Orissa p, 117.
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DEBI PRASAD v. TRIBENI DEVI (Hegde, J.)
107
case of an adoption said to have taken place years before the
same is questioned, the most important evidence is likely to be
that the alleged adoptive father held out the person claiming to
have been adopted as his son; the latter treated the former as his
father and their relations and friends treated them as father and
son.
There is no predetermined way of proving any fact. A fact
is said to have been proved where after considering the matters
before it, the court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it
exists.
Hence if after taking an overall view of the evidence
adduced in the case, we are satisfied that the adoption pleaded is
true, we must necessarily proceed on the basis, in the absence of
any evidence to the contrary, that it is a valid adoption as well.
As mentioned earlier Shyam Behari Lal has not been able to
substantiate the custom pleaded by him; nor has he adduced any
direct evidence relating to the factum of adoption.
His case entirely rests upon the decumentary evidence that he has produced
to show that he had been consistently and continuously treated
as the son of Gopal Das, by Gopal Das himself, during his life
time and by all his friends and relations including Debi Prasad.
'
Before dealing with the evidence
mentioned earlier, it is
necessary to mention that the High Court has relied in proof of
the adoption pleaded, on the evidence of D.W. 10 Rikhab Das
and D.W. 15 Chhotey Lal. Both of them were the close relations
of the wife of Gopal Das. They are disinterested witnesses. Their
evidence is to the effect that sometime after the birth of Shyam
Behari Lal, the wife of Gopnl Das took him to her paternal home
where Paon Pheri ceremony was performed. There is satisfactory
evidsnce to show that this ceremony is customarily performed in
the parental home of a lady who has given birth to her first child.
We see no reason to disbelieve the testimony of these witnesses.
Their evidence clearly indicates the fact that Shyam Behari Lal
must have been taken in adoption by Gopal Das. We may also·
at this stage refef to another important circumstance appearing
i'n the case.
As mentioned earlier, both Gopal Das and his wife
died in the year 1934.
The suit from which this appeal arises
was instituted only in 1946. just a few months before the period
of limitation for instituting the same expired. Debi Prasad has not
given any satisfactory explanation for this inordinate delay in
instituting the suit.
This circumstance tends to show that the
suit is likely to be speculative one.
Now coming to the documentary evidence referred to earlier,
it is proved that Shyam Behari Lal was admitted to school in
1907. Exh. A-658, is the application made for
admission on
December 12, 1907. That application was signed by Gopal Das.
108
SUPREME COURT REPORTS
(1971 J I S.C.R.
It recites that Shyam Behari Lal is the son of Gopal Das.
This
admission of Gopal Das is an extremely important piece of evidence.
No reason is given why Gopal Das should have made a
false statement in that application.
The explanation that someone mmt have filled in the form and Gopal Das must have signed
the same in ignorance is not worthy of credence.
,,
Exh. A-261, is the certified copy of the deposition of Gopal
Das in Regular Suit No. 1 04 of 1917 in the court of the Subordi·
nate Judge, Faizabad.
That deposition was given on May 9,
1918. Therein Gopal Das admitted in more than one place that
Shyam Behari Lal was his son.
We next come to Exh. A-364,
a copy of the nomination paper filed by Shyam Behari Lal for
election to the municipal council.
Gopal Das was one of the
persons who proposed his name.
Therein again Shyam Behari
Lal was described as the son of Gopal Das.
Gopal Das was an income-tax ~ssessee. He was assessed as
the Karta of his Hindu Undivided Family. Exh. A-299 is
the
assessment order for the year 1921-22; Exh. A-300 is the assessment order for the year l 922-23; Exh. A-301 is the assessment
order for the year 1923-24: Exh. A-302 is the assessment order
for the year 1924-25; Exh. A-303 is the assessment order for the
year 1925-26; Exh. A-304 is the assessment order for the year
1926-27: Exh. A-305 is the assessment order for the year I 92728: Exh. A-306 is the assessment order for the year 1928-29;
Exh. A-307 is the assessment order for the year 1929-30; Exh.
A-309 is the assessment order for the year 1931-32 and Exh. A313 is the assessment order for the year 1935-36. While computing the income of the H.U.F. the professional income of Shyam
Behari Lal as a lawyer was taken into consideration. Those assessment orders proceed on the basis that Gopal Das and Shyam
Fehari Lal constituted a joint Hindu family.
It may be noted
that most of those assessment orders were made during the life
time of Gopal Das and e\'idently on the basis of the returns sub·
mitted by him.
If Shyam Behari Lal had not been the son of
Gopal Das, he could not have been treated as a member of the
coparcenary of which Gopal Das was the Karta, nor his professional income would have been added to the income of the joint
family of Gopal Das.
These assessment orders have considerable
evidentiary value.
It may be noted that these documents came
into existence at a time when there w~s no dispute.
Next we come to the admissions made by the plaintiff him·
self.
Exh. A-233 is the certified copy of the depositoin of the
plaintiff given in Regular Suit No. 55 of 1935 in the court of
Additional Subordinate Judge, Faizabad.
This
deposition
he
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DEBI PRASAD v. TRIBEN! DEVI (Hegde, J.)
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gave on May 20, 1935, nearly a year after Gopal Das died. Is
that deposition he stated :
"I am partner of the jirm of Gopal Dass Chhangamal. Plaintiff No. 2 is ilie -pr.oprieter of the said firm".
If Debi Prasad was the rightfUI heir to the estate of Gopal Das,
he could not ha_ve admitted in the year 1935 that Shyam Behari
Lal was the proprietor of the firm Gopal Dass Chhangamal. Debi
Prasad's explanation that on the date he gave that deposition,
he was unaware of the fact that he was the heir of Gopal Das,
cannot be believed.
In Exh. A-226, the decree in the aforesaid
suit, Shyam Behari Lal was described as the son of Gopal Das.
Exh. A-274 is another certified copy of the deposition given by
Debi Prasad.
This was given on July 19, 1923 in a suit where
Gopal Das was the plaintiff.
Therein he stated in crossexamination :
"The plaintiff No. I has got a son named B. Shyam
Behari Lal Vakil. ... Our business is
also ancestral
business.
His son Shyam Behari and his grand son
Mukut Behari are members of a joint Hindu family."
He further stated therein :
-"Lala Gopal Das, his son
(referring to Shyam
Behari La]) and grand sen are the sole owners of the
firm styled Kurama] Kedar Nath".
Exh. A-236 is the certified copy of the plaint filed by Shyam
Behari Lal and Debi Prasad jointly in Suit No. 353 of 1935 in
the court of Civil Judge, Faizabad. In paragraph 1 of the plaint,
it is stated :
"The proprietor of the said shop was Gopal Das,
father of the plaintiff No. 1 till his life time and after
his death to which about a year, nine months and half
have passed, the plaintiff No. 1, as survivor became and
is the proprietor of the said property."
This is an extremely important admission.
This admission
was made after the death of Gopal Das.
Therein Debi Prasad
not only admitted that Shyam Behari Lal wa~ the son of Gopal
Das, ije further admitted that he became the proprietor of the
concern by survivorship.
This could have
only happened if
Shyam Behari Lal had been adopted by Gopal Das. Exhs. A-352
and 356 arc two applications made for registration of . a firm
under the Indian Partnership Act, 1932.
The first application
was made on March 26, 1936. It was returned with
some
objection and the second application was made on May 4, 1936.
Both these applications bear. the signature of Debi Pradsad as well
110
SUPREME COURT REPORTS
(1971 J l S.C.R.
as Shyam Behari Lal. In those applications, it was stated that
A
Shyam Behari Lal had succeeded as a partner of the firm whose
registration was sought in the place of his father Gopal Das who
had died.
Exh. A-358 is an application for transfer of shares
made to the Banaras Cotton & Silk Mills Ltd. by Debi Prasad.
Thereunder he sought to transfer his 100 shares to Shyam Behari
Lal whom he described in his application as the son of Gopal
s:
Das. Snrnlar averments were made in Exh. A-359.
Exhs. A-262, 656, 657 and A-276 are the statements made
by the relations of Shyam Behari Lal and Debi Prasad wherein
Shyam Behari Lal was described as the son of Gopal Das.
A large number of documents have been produced to show
that friends, relations and even strangers were treating Shyam
Behari Lal as the son of Gopal Das.
The documents produced
before the court conclusively prove that right from 1907 till 1946,
Shyam Behari Lal was treated as the son of Gopal Das.
This
continuous and consistent course of conduct on the part of Debi
Prasad, Gopal Das and others affords a satisfactory proof of the
fact that Shyam Behari Lal must have been the adopted son of
Gopal Das.
No other reason(lble inference can be drawn from
the material on record.
Mr. Desai appearing on behalf of the appellants contended
that we should not accept the adoption. pleaded firstly because, it
was unlikely that Gopal Das would have taken a child in adoption
as far back as 1892 when he was only 32 years of age; secondly
tRe story that an one day old child was taken in adoption when
the family must have been in pollution must be rejected as being
repugnant to Hindu notions and lastly in a decree of 19.10, Shyam
Behari Lal was described as the son of Ram Das,
his natural
fother.
We are unable to accept these contentions.
It is in evidence that Gopal Das had Jost three children even before 1890.
Evidently he had lost all hopes of getting a natural son.
Further
it is not necessary to speculate in the face of the documentar;
evidence referred to earlier why Gopal Das should have taken a
son in adoption when there was every possibility for him to get
a natural son. Coming to the question of adoption on the very
day Shyam Behari Lal was born, that plea rests on hearsay i;nformation.
There is no positive evidence before us as to when exactly Shyam Behari Lal was adopted.
From the evidence of
D.Ws. I 0 and 15, it is clear that he must have been adopted very
s;ion after his birth. That is the best that can be said on the basis
of the evidence.
That apart custom differs from place to place
and from community to community. It is true that in a decree
made in 1910, Sh yam Behari Lal was described as the son of
Ram Das. But in the very next year in another decree, he was
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DEBI PRASAD v. TRIBENI DEVI (Hegde, J.)
111
described as the son of Gopal Das. We do not think that tn"
e\ idence affordeJ by that solitary
document
showing
Shyam
Behar i Lal as the son of Ram Das can outweigh the other Pvidencc which is both satisfactory as well as voluminous.
On an appreciation of the entir~ evidence on record, we are
in agreement with the High Court's conclusion that Shyam Behari
U1l was the adopted son of Gopal Das and there is nothing to
show that the said adoption was invalid for any reason. In view
of this conclusion, it is unnecessary to consider the other contentions raised in the appeal.
Jn the result this appeal fails and the same is dismissed with
costs.
Y.P.
Appeal dismissed.