# SHRI KISHORI LAL v. MST. CHALTIBAI

- **Citation:** [1959] Supp. 1 S.C.R. 698
- **Court:** Supreme Court of India
- **Decided:** 1959
- **Case number:** Civil Appeal No. 177 of 1955
- **Bench:** Jafer Imam, s. K. DAS, J. L. Kapur
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/shri-kishori-lal-v-mst-chaltibai-1597
- **Pages:** 18

## Headnote

'
Hindu Law-Adoption, proof of-Evidence not proving adoption-Estoppel-Both parties knowing true facts. if doctrine applicable-Admissions and conduct of parties, if can prove adoption.
The respondent filed a suit for declaration and possession of
certaiμ properties left by her deceased husband L .. The appellant contested the suit on the grounds that L had adopted him
as his son six months before his death. In addition to the.oral
evidence of adoption the appellant alleged that he performed
the obsequies of L as such adopted son, that on the thirteenth
day after the death of L he was taken by the respondent in her
lap, that he entered into possession of the estate of L, that the
(1) S.C.R. SUPREME COURT REPORTS
699
respondent performed his marriage and that he was recognised
as the adopted son of L even by the respondent. The appellant
further pleaded that the respondent was estopped from challenging his adoption by her representations in previous legal proceedings and in documents and on account of the fact that the
appellant had by this adoption lost his share of the propei;ties in
his natural family. The respondent denied both the adoption
and the treatment of acceptance of the appellant as the adopted
son of L. The trial Court dismissed the suit holding the adoption proved. On appeal the High Court held the adoption was
not proved and decreed the suit. Both Courts held that the
respondent was not estopped from challenging the adoption.
Held, that the High Court had correctly held that the
adoption of the appellant by L had not been established. As an
adoption results in changing the course of succession, the
evidence to support it should be such that it should be free from
all suspicion of fraud and so consistent and probable as to leave
no occasion for doubting its truth.
Held further, that the respondent was not estopped from
disputing the adoption. The correct rule of estoppel applicable
in the case of adoption is that it does not confer status; it only
shuts the mouths of certain persons if they try to deny the
adoption. But where both farties are coversant with the true
state of facts the doctrine o estoppel has no application. Admissions made by a party are not conclusive, and unless they constitute estoppel, the maker is at liberty to prove that they were
mistaken or were untrue. Presumptions arising from the conduct of a party cannot sustain an adoption even though it might
have been acquiesced in by all concerned when the evidence
shows that the adoption did not take place.
Mohori Bibi v. Dhurmdas Ghosh, (1902) 30 I.A. II4, relied
upon.

## Text

698
SUPREME COURT REPORTS [1959] Supp.
r958
were part of the transactions of sale of liquor which
. -. . .
produced the profit and therE1fore they had a profit
Pu•J.•b D15tilhng making quality. Again, a wholesaler was quite free
Industms Ltd. to return the bottles or not as he liked and if he did
The c0,;;;.issioner not return them, the appellant had no liability to reo/ In<ome-1••· fund. It would then keep the moneys as its own and
Simla
they would then certainly be profit.
The moneys
when paid were the moneys of the appellant and were
Sarhar J.
thereafter in no sense the moneys of the persons who
paid them.
Having given the matter our anxious consideration
which the difficulties involved in it require, we think
that the correct view to take is that the amounts paid
to the appellant and described as "Empty Bottles
Return Security Deposit " were trading receipts and
therefore income of the appellant assessable to tax.
We agree with the High Court that the question
framed for decision in this case, should be answered in
the affirmative ..
In the result the appeal fails and is dismissed. The
appellant will pay the costs in this Court.
Appeal dismiaatd.
SHRI KISHORI LAL
v.
MST. CHALTIBAI .
(JAFER IMAM, s. K. DAS and J. L. KAPUR, JJ.)
'
Hindu Law-Adoption, proof of-Evidence not proving adoption-Estoppel-Both parties knowing true facts. if doctrine applicable-Admissions and conduct of parties, if can prove adoption.
The respondent filed a suit for declaration and possession of
certaiμ properties left by her deceased husband L .. The appellant contested the suit on the grounds that L had adopted him
as his son six months before his death. In addition to the.oral
evidence of adoption the appellant alleged that he performed
the obsequies of L as such adopted son, that on the thirteenth
day after the death of L he was taken by the respondent in her
lap, that he entered into possession of the estate of L, that the
(1) S.C.R. SUPREME COURT REPORTS
699
respondent performed his marriage and that he was recognised
as the adopted son of L even by the respondent. The appellant
further pleaded that the respondent was estopped from challenging his adoption by her representations in previous legal proceedings and in documents and on account of the fact that the
appellant had by this adoption lost his share of the propei;ties in
his natural family. The respondent denied both the adoption
and the treatment of acceptance of the appellant as the adopted
son of L. The trial Court dismissed the suit holding the adoption proved. On appeal the High Court held the adoption was
not proved and decreed the suit. Both Courts held that the
respondent was not estopped from challenging the adoption.
Held, that the High Court had correctly held that the
adoption of the appellant by L had not been established. As an
adoption results in changing the course of succession, the
evidence to support it should be such that it should be free from
all suspicion of fraud and so consistent and probable as to leave
no occasion for doubting its truth.
Held further, that the respondent was not estopped from
disputing the adoption. The correct rule of estoppel applicable
in the case of adoption is that it does not confer status; it only
shuts the mouths of certain persons if they try to deny the
adoption. But where both farties are coversant with the true
state of facts the doctrine o estoppel has no application. Admissions made by a party are not conclusive, and unless they constitute estoppel, the maker is at liberty to prove that they were
mistaken or were untrue. Presumptions arising from the conduct of a party cannot sustain an adoption even though it might
have been acquiesced in by all concerned when the evidence
shows that the adoption did not take place.
Mohori Bibi v. Dhurmdas Ghosh, (1902) 30 I.A. II4, relied
upon.
CIVIL APPELLATE JURISDICTION: Civil Appeal No.
177 of 1955.
Appeal from the judgment and decree dated September 28, 1953, of the former Nagpur High Court in
First Appeal No. 115 of 1951, arising out of the judgment and decree dated July 25, 1951, of the Court of
Additional District Judge, Bhandara, in Civil Suit
No. 14-A of 1957.
C. B. Aggarwala and Radheylal Aggarwal, for the
appellant.
S. -P. Sinha and S. N. Mukherjee, for the respondent.
1958. December 1. The Judgment of the Court was
delivered by
SAri K isliori Lal
v.
M sl. Clialtibai
700
SUPREME COURT REPORTS [1959] Supp.
z95B
KAPUR, J.-This is an appeal against the judgment
and decree of the High Court of Nagpur reversing the
Sbri I<ishori Lal
v.
decree of the Additional District Judge dismissing the
Mst. chaltibai plaintiff's Ruit. The appellant before us is the defendant Kishori Lal who claimed to be the adopted son,
Kapur J.
adopted by the husband of the plaintiff, Mst. Chaltibai
who is the respondent in this appeal.
The suit out of which this appeal arises was
brought by Mst. Chaltibai, the widow of Lakshminarayan, a Marwari Aggarwal of the District of
Bhandara against Badrinara.yan defendant No. 1 and
his son Kishori Lal defendant No. 2 now appellant for
a declaration that properties in sch. B & C belonged
to her as heir to her deceased husband Lakshminarayan and for possession of the property in schedule D.
The facts of the litigation relevant for the purpose of
this judgment are these : Badrinarayan and Lakshminarayan were two brothers the former who was elder
was carrying on bu8iness at Raipur and the latter who
was younger carried on business in the ancestral
village named Tirora where it is stated Badrinarayan
also was doing some business. Lakshminarayan's first
wife died in 1919 leaving a son and a daughter. In
1922 Lakshminarayan married the respondent Mst.
Chaltibai. His son died sometime after this marriage
and therefore the only remaining child of Lakshminarayan was the daughter Mst. Jamnabai who was
married to one Chotteylal. On January 6, 1936,
Lakshminarayan died of a heart disease leaving his
estate which is given in schs. B, C and D and is
valued at about Rs. 30,000.
Although the plaintiff
Chaltibai, now respondent, had alleged that Lakshminarayan died suddenly and did not suffer from any
heart disease previous to his death, the appellant
pleaded that Lakshminarayan developed heart trouble
in 1934. He also pleaded that because of this heart
trouble Lakshminarayan became despaired of begetting a son anq therefore adopted in Jaisth (May-June)
1935 the appellant Kishorilal then aged 13 years who
was the youngest of the five sons of his brother Badrinarayan, the others being Mohanlal, Gowardhan,
Nandlal and Narayan. He further pleaded that after
(1) S.C.R. SUPREME COURT REPORTS
I 701
his adoption he resided with J_,akshminarayan a~ his
z95B
adopted son and when Lakshminarayan died he per- Shri Kishori Lal
formed his obsequies as such adopted son, was placed
v.
on the gaddi and the turban was tied on his he~d in
Mst. Chaltibai
accordance with the custom of the caste ; that he was
on the thirteenth day (tervi) taken by the respotident
Kapur J.
Chaltibai in her lap from Badrinarayan with the consent and in the presence of the relations of Lak$hmi- ·
narayan · on the thirteenth day of the death of Lakshminarayan ; that he entered into possession of the
estate of the deceased Lakshminarayan and was
recognised as his adopted son even by the respor;ident
who continued to accept and treat him as such· upto
1946 ; and in 1942 the respondent performed his (the
appellant's marriage). After he attained majority he
managed the estate himself and there was a. partition
in the family of Badrina.rayan on October 30, 1943, in
which the appellant, because of his having been given
out in adoption in another family, received nosha.re.
The respondent in the plaint denied both the adoption and the treatment or acceptance of the app~Uant
a.a an adopted son. She also stated that she was an
illiterate purda.nashin woman who was not conversant
with the management of business and after the death
of her husband she reposed full confidence in ~adri
narayan who assured her that he would properly look
after her affairs, business and property and conseqμently Ba.drinarayan took over the management of the
estate and the account books and also looked after
court work.
At his instance she (the respon~ent)
signed certain papers without understanding them or
without knowing their contents and sometime$ she
even signed blank papers. The appellant and his
father Badrinarayan then attempted to oust her 1from
the business and the estate of her husband which led
to disputes between the parties and proceedings under
as. 107 & 145 of the Code of Criminal Procedure were
started, a receiver was appointed and the Magistrate
by an order dated May 19, 1947, directed the partles to
have their rights decided by a civil court. This order
was unsuccessfully challenged by the appellant in
revision. In the criminal case the appellant, it is
I
702
SUPREME COURT REPORTS [1959] Supp.
' 958
alleged, asserted that he had been adopted by LakShri Kishori Lal shminarain six months prior to his death, a fact which
v.
the respondent Chaltiba.i denied in her plaint.
Mst. Chaltibai
On these pleadings the court framed four issues and
the two relevant issues for the purpose of this appeal
Kapur].
are:
(1) Did the deceased Lakshmina.ra.yan validly
adopt the defendant No. 2 in the bri11;ht fortnight of
Jyestha (June), 1935 A. D.?
(b) Was the adoption valid according to law?
(2) Had the plaintiff all a.long
recognised the
adoption as v a.lid and legal and had she been treating
defendant No. 2 as Lakshmina.rayan's son all a.long ?
(b) If so, result?
The trial court dismissed the suit. It held the adoption proved but found against the appellant on the
question of estoppel.
The High Court on appeal
reversed the finding as to the factum of adoption but
upheld the finding on the question of estoppel. It was
of the opinion that the respondent was not estopped
on account of any misrepresentation ma.de by her and
that there was no such conduct on her pa.rt which
deprived her of her right of bringing the present suit
and that both parties knew that there was no adoption in fact. The appeal was therefore allowed. The
defendant Kishorilal has brought this appeal to this
Court under a certificate of the High Court and the
judgment of the High Court is assailed on several
grounds : Firstly, it was urged that the evidence produced in support of the adoption proved that the
appellant was adopted by Lakshmina.rayan six months
before his death. Secondly, the doctrine of estoppel
was relied upon, estoppel on the ground that the respondent Chaltibai had represented in previous legal
proceedings and in various ways by execution of documents and by her actions that the appellant was the
adopted son of Lakshminarayan. She had put him in
possession as owner of all the estate of Lakshminarayan, and had given up her own claim to heirship to
his estate and as a result of this conduct and representations made by the respondent the appellant had
(1) S.C.R. SUPREME COURT REPORTS
703
altered his possesi;iion (i) by being completely trans-
~
58 ·
planted from his real father's family into; another Shri Kishori Lal
family and (ii) by being deprived of his shate of the
v.
properties in his natural family.
Thirdly, it was
M st. Chollibai
argued that because of her admission that the appellant was the adopted son of La.kshminarayan and his
liapur J.
heir the burden was on her to show that he was not
the adopted son. And fourthly, it was submitted that
having regard to the long course of conduct of the
respondent Chaltibai in· treating the appellant as the
adopted son of Lakshminarayan the evidence produced should be appraised in such a manner as to
hold it sufficient for proving the adoption.
There is no formal deed of adoption, the appellant
therefore sought to prove it by the evidence of six
witnesses who were. his real brother Mohanlal, his
natural father Badrinarayan and two
~elations
Narsingdas and Shankarlal, a neighbour Cha~tarpatti
who is some kind of a physician and Kishodlal himself appeared in support of his case. A seventh witness Sobharam was produced to prove an admission by
:f..akshminarayan that he had adopted the appellant.
The story of the adoption as disclosed by the evidence
for the appellant was that as Lakshminarayan had
no son of his own he asked his brother Badrina.rayan to
give his youngest son in adoption to which be agreed
and the adoption took place at the house of Lakshmi.
narayan at Tirori in the month of J yaistha 1935 about
six months before the death of Lakshminarayan. The
formalities of adoption, according to this evidence, consisted of placing the appellant as a son not in lap of
the adoptive mother but of Laksh minarayan who put
a tilak on the appellant's forehead and tied a ~urban on
his head. This was followed by distributiom pf pansupari to the persons assembled who were NaJiasingdas
and Shankarlal who were from outside Tirora, Raman
and Ji van Singh who were servants of Lakshminarayan, Chhatarpatti a neighbour and Bhaiyalal who has
not been examined and there was also present Mohanlal a real brother of the appellant. Some other persons
were also present by the appellant but they arit not witnesses ~n the case and Badrinarayan and Moh~nlal did
704
SUPREME COURT REPORTS [1959] Supp.
'958
not mention their presence. No religious ceremony
Sh . K' h . L 1 was performed and there was no priest though witness
" ':.°" • N arsingdas stated that a priest was present at the
Mst. chaltibai adoption ceremony and ganesh puja was performed.
The evidence also shows that no invitations were sent
Kapur J.
to the brotherhood, friends or relations and besides
the persons mentioned above no one else was present
and thus no publicity was given to the adoption. None
of the relations of the respondent were invited or were
present although she had brothers and sisters and
they were married. Even the respondent Chaltibai
was not present at the ceremony of adoption. It is
stated that she was in some inner room.
And after
the formalities of adoption Lakshminarayan himself
put the adopted son in the lap of the respondent
Chaltibai. The adoption was not followed by any
feast nor was any photograph taken and no presents
were given to the adopted son. Lakshminarayan did
not consult any priest as is usual for fixing an auspicious day for adoption.
Although the defendants
were allowed to amend th9ir written statement they
gave no details of the adoption by Lakshminarayan
beyond saying that it was in the month of Jyaistha
1935 but what date it was, was not mentioned. The
parties are Aggarwals and belong to a commercial
community who maintain complete and detailed
accounts. Although Badrinarayan who was defendant No. 1 chose to put in accounts of January 20,
1936, in connection with what he expended on the tervi
(thirteenth) day ceremony after the death of Lakshminarayan yet he filed no such accounts showing the
date when he and his son the appellant came to Tirora
from Raipur for the purposes of adoption or when
they went back. No contemporary document' of any
kind has been produced to show when the adoption
took place or what was expended by Badrinarayan
nor have the accounts of Lakshminarayan who according to the appellant himself maintained account
books been produced to show as to the expenses of
whatever little ceremony was observed on the date of
the adoption. The account produced by Badrinarayan
shows the amount expended on the occasion of
(1) S.C.R. SUPREME COURT REPORTS
705
I
thirteenth day ceremony after the death of Lakshminarayan on betel leaves, milk, betelnuts and also what Shri Kishori Lal
was paid at the house of Lakshminarayan il!l.cluding
v.
the amount paid for the turban for the reading of the
Mst. Chaltibai
garud puran or what was paid to Kesu (which we are
told is a pet name of Kishorilal) for touching 1the feet
of the elders. The significance of this fact has not
been explained by the appellant.
As an adoption results in changing the cpurse of
succession, depriving wives and daughters of their
rights and transferring properties to comparative
strangers or more remote relations it is necess~ry that
the evidence to support it should be such that it is free
from all suspicion of fraud and so consistent and probable as to leave no occasion for doubting i~s truth.
Failure to produce accounts, in circumstances such as
have been proved in the present case, would be a very
suspicious circumstance. The importance of apcounts
was emphasised by the Privy Council in Sootritgun v.
Sabitra (1); in Diwakar Rao v. Ohandanl,al Rao (2); in
Kishoril,al v. Ohunilal (3); in Lal Kunwar v. Oharanji
Lal (4) and in Padamlal v. Fakira Debya (5).
'
The oral evidence of witnesses deposing to the fac.
tum of ado~tion .is both insufficient and ?ontra4icto!Y·
Beyond their bemg agreed on the q uest10n of takmg
the appellant in adoption by Lakshminarayian the
witnesses are not in accord as to the details of the
adoption or as to the ceremonies or as to the usual
feast following it. The giving of presents is tbe only
detail on which they are agreed, they all deposed that
no presents were given.
As to what happehed in
regard to the taking of the appellant in her lap by the
respondent after the death of Lakshminarayan the
witnesses are not in accord. There is disagreement
as to its date how it cam'e about and why. The adoption during the lifetime of Lakshminarayan is contradicted by a document dated January 24, 1938,
1a sale
deed by the respondent Chaltibai in favour of the
(r) (1834) 2 Knapp. 287.
(2) (1916) I.L.R. 44 Calcutta 201 (1>.C.).
(3) (1908) 36 I.A. 9.
(4) (1909) 37 I.A. I, 7.
(5) A.LR. 1931 (P.C.) 84.
89
Rapur ].
706
SUPREME COURT REPORTS [1959] Supp.
1958
Firm Ganeshram Fatteh Chand the family firm of
S • . K-:-; . L 1 witness N arsingdas. Therein the ado'fttion of the
""
""
0
"
a
II
·
d
h
I
v.
appe ant 1s state to ave taken p ace a ter the death
Ms1. Chaltib•i of Lakshminarayan and was by Chaltibai respondent
under the authority of her deceased husband a.nd with
K•J>u• J.
the consent of the whole family. This document wa.s
witnessed by the natural father Badrina.ra.ya.n. No
satisfactory explanation of this wholly different adoption being mentioned in a deed executed only two
years after the dea.th of Lakshminaraya.n ha.s been
given by the appellant, except this that whether he
was adopted by Lakshminaraya.n in his lifetime or
after his death by the respondent Cha.ltibai, he would
be the adopted son of Lakshminarayan and therefore this discrepant recital in the sale deed wa.s of
little consequence. This argument ignores the case
set up by the appellant in his written statement a.nd
the utter lack of evidence of the authority of the
husband or of the assent of his kinsmen which wa.s
neither pleaded nor proved. Another circumstance
which casts a great deal of doubt on the adoption set
up by the appellant is that after the adoption the
appellant went back to Raipur where his na.tura.1
father was residing. Although Badrinarayan stated
that after the adoption the appellant lived with his
adoptive father, this is negatived by the evidence
produced by the appellant himself which is to the
effect that he went back to school at Raipur a.nd returned to Tirora on the da.y La.kshmina.raya.n died.
The High Court also found that he left for Raipur
after the obsequies a.nd returned three or four months
later. The school leaving certificate shows that he
wa.s a student in the school a.t Tirora. from June 22,
1936 to June 30, 1937, and there he was entered a.s
the son of Badrina.ra.ya.n. Ta.king a.II these facts into
consideration the High Court, in our opinion, ha.s correctly held that the fa.ctum of adoption by La.kshmina.ra.ya.n has not been established.
It was next argued on behalf of the appellant that
even though the evidence produced in support of the
adoption might be unsatisfactory a.nd not sufficient to
establish the fa.ctum of adoption the respondent in this
(1) S.C.R.
SUPREME COURT REPORTS
707
case was estopped from setting up the true facts of the
1958
case inasmuch as she represented in the former docu- Sh . -. -
d 1
1
d.
d .
.
h
rt Kishori Lal
ment an ega. procee mgs an m various ot er ways
v.
that the appellant was the adopted son of the qeceased
Mst. Chaltibai
Lakshmina.ra.yan and thereby caused him to ' change
his position by being transferred from the family of
I>apur J.
Ba.drina.ra.ya.n to that of La.kshmin&ra.ya.n.
These
documents will be discussed later. In this c91se both
the parties were a.ware of the truth of the facts and
consequently the doctrine of estoppal was inapplicable.
It cannot be said that the respondent by her own
words or conduct wilfully ca.used the appepant to
believe the existence of a certain state of things i.e.
adoption by Lakshminarayan and induced hilJl to a.ct
on that belief so as to alter his position and therefore
she could not be concluded from averring a. <Jifferent
state of things a.s existing a.t the same time. See
Pickard v. Sear (1) and Square v. Square (2). The Privy
Council in Mohori Bibi v. Dhurmdas Ghosh {3) held that
there can be no estoppal where the truth of th~ matter
is known to both the parties. Therefore when both
the parties are equally conversant with the txiue facts
the doctrine of estoppel is inapplicable.
The documents giving rise to the plea. of estoppel
were four and the appellant also relied on the acts of
the respondent which will be referred to later. The
first document was an application dated Mitrch 21,
1936, for a succession certificate which was file<l by the
respondent a.s " guardian mother " of the appellant
Kishorilal. The necessity for this application a.rose
because in order to get insurance money on ,a. policy
taken out by the deceased Lakshmina.ra.yan al succession certificate had to be obtained. The Hi~h Court
came to the conclusion that there was no evidence to
show that the respondent Chaltibai's signatur~s were
obtained on the document after it was explained to her,
the document was in English and she was not conversant with that language. Two other drafts were made
for the application for this succession certifica~e which
(1) (1837) 6 AD. & E. 469; (1837) I12 E.R. 179.
(2) [1935) P. 120.
(3) (1902) 30 I.A. II.f.
r958
Shri Kisho,i -!-al
v.
Mst. Chaltibai
Kapur ].
708 SUPREME COURT REPORTS [1959] Supp.
are both on the record. In these two drafts Badrinarayan is shown as" guardian uncle" of the appellant
Kishorilal. Although Badrinarayan was reluctant to
do so he had to admit the existence of these two drafts
but addQd that he had instructed Jivan Singh a
servant of Lakshminarayan not to file the application
till after he had consulted a Mr. P. S. Deo, a pleader
and after he had consulted him the application was
filed but with Chaltibai as guardian. This document
in para. 3 sets out the names of the relations of the
deceased. They were the widow Chaltibai, the daughter Jamnabai, the brother Badrinarayan and the four
sons of Badrinarayan. In this column the appellant
Kishorilal was not shown as a relative of the deceased.
In a later paragraph it was stated that the petitioner
i. e. the appellant Kishorilal claimed the certificate as
the adopted son of the deceased Lakshminarayan. On
the finding of the High Court that-the document was
not explained to the respondent Chaltibai it cannot be
said that :it established any admission, much less
estoppel. This document did not contain any admission which would necessarily show •that Kishorilal
appellant was adopted by Lakshminarayan during his
lifetime.
The next document relied upon is a bahi entry in a
Mathura Panda's book dated July 21; 1944. The story
is that the respondent Chaltibai visited Mathura on
her way back from Badrinarayan and the Panda of the
family made an entry in his bahi after making enquiries from her showing the appellant Kishorilal as the
adopted son. The entry is signed by her. This document is contradicted by another entry in the same
Panda's bahi which is stated to have been made at the
instance of Mohanlal, the eldest brother of the appellant on March 2, 1947, about 2! years after the previous entry. In the later entry the appellant Kishorilal was shown as the son of Badrinarayan and not the
adopted son of Lakshminarayan. Whether the document-the previous Bahi entry-was at the instance
of the respondent Chaltibai or not is not material
because it does not advance the case of the appellant.
This document also does not show that the appellant
(1) S.C.R. SUPH,EME COURT REPORTS ,
709
'
was adopted by . Lakshminarayan. Then there is a
document adhilcarpatra dated May 4, 1946, by .which a
dispute between the appellant and the respomlent was
referred to the arbitration of 7 persons. It was signed
by the appellant and the respondent and it wil,s therein recited :
'
"Relations between us mother and son
have
become strained in connection with some mat~ers. It
is very necessary to remove the same".
In another portion of the document also words used
are " between us the mother and the son •!.
This
document also was not accepted by the High Court as
containing an admission because even at the time of
its execution the respondent Chaltibai was <:lenying
the adoption ofKishorilal which was proved by the
testimony of two of the panches (arbitrators), themselves. It cannot be said therefore that this document
represented correct state of affairs but even if it did it
cannot be treated as an admission by the respondent
that the appellant was adopted by Lakshroinarayan.
Lasqy there is the deed of sale dated Janu,ary 24,
1938, wherein the respondent had recited tbat the
appellant Kishorilal was adopted by her husbaind "in
accordance with his wishes and consent of the, entire
family". This recital negatives the whole case of the
appellant as set up in his written statement that he
was adopted by Lakshminarayan during his lifotimc.
In his written statement he had only pleaded his
having been placed in the lap of the respondent
Chaltibai as confirmatory of his adoption by Lalrnhminarayan. The documents mentioned above do not
support the plea that the appellant had been' led to
alter his position through a belief in any misrepresentation made by the respondent Chaltibai as to his having
been adopted by Lakshminarnyan. And he cannot be
allowed to set up a case different to his ca8e in the
written statement .nor can he be allowed to prdvc his
title as an adopted son on such differnnt case'
Sec
Tayammaul v. Sashachalla
Naiker (1), Gopeel,p,l
v.
M itssamat Ohandraolee Buhajee (2).
The correc~ rule
of estoppel applicable in the case of adoption is tihat it
(1) (1865) 10 1\1.l.A. 429.
(2) (1872) Supp. I.A. ~31.
Shri Rishori La.
v.
Ms/. Chaltibai
Kapur].
Sh,.i Kishori Lal
v.
.Jl.Ist. Chaltibai
Rapur ].
710
SUPREME COURT REPORTS [1959] Supp.
does not confer status. It shuts out the mouth of
certain persons if they try to deny the adoption, but
where both parties are equally conversant with the
true state of facts this doctrine has no application .
Two further facts which the appellant's counsel relied
upon to support his plea of estoppel were: (1) his
being allowed to perform the obsequies of Lakshmina.rayan and (2) the performance of his marriage by
the respondent Chaltibai as his adoptive mother. If
the adoption itself is disproved these two facts will not
add to the efficacy of the plea of estoppel which
otherwise is inapplicable: Dhanraj v. Sonabai (').
The appellant relied on Rani Dharam Kunwar v.
Balwant Singh (') which was a case where the adoptive
mother, the Rani had herself in a previous proceeding
pleaded that she had authority to adopt and the Privy
Council were of the opinion that the question could )le
decided on its own facts without recourse to the
doctrine of estoppel, although they did not differ from
the view of the courts below as to the a. pplicability of
the doctrine of estoppel. That was not a case of the
parties being equally conversant with the true facts
and further there was a finding that the person claiming to be the adopted son was as a. matter of fact
adopted. In our view there is no substance in the
plea. of estoppel raised by the appellant.
Whatever the acts of the respondent Cha.ltiba.i, whatever her admissions and whatever the course of
conduct she pursued qua the appellant Kishorilal they
could not amount to estoppel as both parties were
equally conversant with the true facts. In none of
the four documents which are signed by her, is there
any admission that Kishorilal was adopted by her
husband during his lifetime. On the other hand in
the sale deed dated January 24, 1938, she recited an
adoption by herself which is not the adoption that the
appellant relied upon in support of his case. The
other documents i .. e. the application for succession
certificate and the arbitration agreement and the
entry in the Panda's bahi are all consistent with the
recital in the sale deed and do not establish the case
(1) (1925) 52 I.A. 231, 243.
(2) (1912) 39 I.A. 142, 148.
-·
(1) S.C.R. SUPREME COURT REPORTS ·
711
of the appellant as to the adoption by Lakshmi-
,_
narayan himself.
.
Shri Rishori Lal
It was then argued for the appellant that t}).e course
v.
of conduct of the respondent and her various, acts of Mst. Cltaltibai
admission and the treatment of the appellant as an
adopted son by the respondent and other members of
the family gave rise to a strong inference that he (the
appellant) was adopted as alleged by him 'and the
l\apur ].
evidence should have been so appraised as to support
that inference. Particular emphasis was placed by
counsel for the appellant on the fact that soon after
the death of Lakshminarayan it was given 011t that
the appellant was his adopted son and this a$sertion
was continuously made in many transactions and
documents. These documents, the course of conduct
of Chaltibai respondent in treating the appellant as
the adopted son of Lakshminarayan and the length
of the appellant's possession of Lakshminavayan's
estate, it was contended, showed that he w,as the
adopted son of Lakshminarayan. It was also submitted that the admissions shifted the onus on to the
respondent on the principle that what a party himself
admits to be true may reasonably be presumed ' to be
so and until the presumption was rebutted, the fact
admitted must be taken to be established : Ch,andra
Kunwar v. Narpat Singh (1).
The question of onus
loses its efficacy because it was never objected to in
the courts below and evidence having been led bif the
parties, at this stage the court has to adjudic$.te on
the material before it. And admissions a.re not conclusive, and unless they constitute estoppel, the maker
is at liberty to prove that they were mistaken or were
untrue: Trinidad Asphalt Company · v. Coryat (2).
Admissions are mere pieces of evidence and if the
truth of the matter is known to both parties the principle stated in Chandra Kunwar's case (1) would be
inapplicable. And in this case there is no admi~sion
by the respondent of the appellant's adoption by her
husband in his lifetime. Such admissions that there
are cannot help the case of the appellant or support a
different appraisal of the evidence of the factum of
(1) (1906) 34 I. A. 27.
(2) [1896] A. C. 587.
712
SUPREME COURT REPORTS (1959] Supp.
I958
adoption or establish an adoption which is otherwise
SArl KlsAori Lal disproved.
v.
In order to properly appreciate the effect of these
Ms1. Ch•ltib•i admissions it is necessary to consider the circumstances under which these various documents were
J{apur f.
executed and the acts done or the admissions made.
At the death of Lakshminar~yan the respondent was
24 or 25 years old surrounded by the family of Badrinarayan whose interest it was to foist an adoption on
her. Her own relations do not seem to have taken
much interest in her or her affairs. She was thus a
widow, lonely and dependent upon her husband's relations. The trial Court described her as a pardanashin
woman. Although Badrinarayan himself denied that
he was managing the estate of Lakshminarayan,
Narsingdas one of the appellant's witnesses stated
that Badrinarayan was doing so and Badrinarayan
admitted that he looked after the court cases though
at the request of the respondent. It is with this background that the evidence has to be considered and
weighed.
Any admission made by a widow situated
as the respondent was would necessarily carry very
little weight: Padamlal v. Fakira Debya (1).
Besides the four documents above mentioned the
appellant Kishorilal relied on the following facts as
instances of admissions and conduct of the respondent
Chaltibai. The first is the performance of obsequies
by the appellant and the subsequent taking of the
appellant in her lap by the respondent.
The mere
fa.ct of performance of these funeral rites does not
necessarily support an adoption. The performance of
these rites frequently varies according to the circumstances of each case and the view and usage of different families.
The evidence led by the appellant himself shows that in the absence of the son, junior
relations like a younger brother or a younger nephew
performs the obeequial ceremonies. As was pointed
out by the Privy Council in Tayamal's case (') the
performance of funeral rites will not sustain an adoption unless it clearly appears that the adoption itself
was performed under circumstances as would render it
(I) A.I.R. 1931 (P.C.) 84.
(2) (1865) IO M.I.A. 429.
(1) S.C.R.
SUPREME COURT REPORTS
713
perfectly valid.
But then it was submitted that the
taking by the respondent of the appellant in her lap Sh•i Kishori Lal
coupled with the performance of obsequies was
1a clear
v.
proof of her acceptance of the appellant's adoption by
Mst. Challibai
her deceased husband. This again is slender b~sis for
any such inference as Badrinarayan himself, stated
that it was not customary amongst them ]or the
widow to take the adopted Ron in her lap and in this
particular case it was only done as she desired it. As
proof of adoption by Lakshminarayan this piece of
evidence has no value because that is not the case of
the appellant; and as showing confirmatory process
it is valueless in the absence of evidence sufficient to
establish the adoption by Lakshminarayan which in
this case is lacking.
'
'fhe appellant's residing with Lakshminarayap. after
his adoption and after the death of Lakshminarayan
with the respondent was next relied upon by counsel for
-the appellant. As we have already said the appellant
had not proved that he was residing with Lakshminarayan after his adoptfon ; on the contrary the evidence
shows that he left Tirora soon after his alleged adoption and did not return till after the death of Lakshminarayan. And then again he returned to Raipur and
returned to Tirora after about four or five months.
The mere fa.ct that he continued to reside with the
respondent since would not in this case prove adoption, because in the school register he was shown as
the llOD of Badrinarayan and continued to be so shown
upto June 30, 1937, and mere residence of a young
nephew with a widowed and young aunt is no ,proof
of adoption by her husband in the absence of satisfac.
tory evidence of the factum of adoption.
The appellant, it was next contended, was in possession of the properties of Lakshminarayan after the
latter's death and his name was brought on the record
in all civil and revenue proceedings. As we have said
above, Badrinaraya.n took over the management of
the estate of Lakshmina.rayan and was looking after
the conduct of the court cases. If in those cir'cumstances the mutations were made in the name of the
90
Kapur].
Shri Kishori Lal
v.
Mst. Chaltibai
Kapu, J.
714
SUPREME COURT REPORTS
[1959] Supp.
appellant or suits were brought in his name or even if
he took out licences in his name would be matters of
small consequence. It is not shown that at the time
of the mutations the respondent was present or was
represented or the suits were brought with her knowledge and it appears that all this was done because
the management of the estate as well as the conduct
of the cases in cou,rts was in the hands of Ba.drina.ra.ya.n. Then the fa.ct that after he attained majority, the appellant was managing the estate and was
recognised by, everybody as its owner also is of little
consequence because as far as the respondent was
concerned somebody had to manage the property,
whether it was Ba.drina.ra.yan or the appellant Kishorila.l to her it ma.de no difference. It may also be
mentioned here that in the mutation order passed by
the Tehsilda.r on April 8, 1936, which related to 3As.
share of Monza. Ja.ba.rtola. the mutation entry was
made in favour of the respondent and not in the name
of the appellant and in the ja.ma.ba.ndi papers relating
to different holdings in some places the appellant is
shown under the guardianship of his mother Cha.ltiba.i
and in other places under the guardianship of Ba.dri·
na.ra.ya.n as his uncle.
A great deal of stress was la.id by the appellant on
the fa.ct that his marriage was performed by the respondent Chaltiba.i and she purporj;ed to do so as his.
adoptive mother. The performance of the marriage
itself does not prove adoption, which is otherwise disproved, and as a. circumstance supporting the inference of adoption set up by the appellant it is wholly
neutral.
At the most the circumstances relied upon by the
appellant may be acts of acquiescence attributed to the
respondent but they would be important only if they
were brought to bear upon the question which depended upon preponderance of evidence. If the facts are
once . ascertained, presumption arising from conduct cannot establish ~right which the facts themselves disprove : See Tayamal' B case (1) at p. 433.
Presumptions cannot sustain an adoption even though
(1) (1865) 10 M.I.A. 42g.
(1) S.C.R.
SUPREME COURT REPORTS .
715
it might have been acquiesced in by all concerned
when as in the present case, the evidence shows that
the adoption did not take place. Another fact on
which the appellant relied was that on October 30,
1933, Badrinarayan, his wife and his sons par.titioned
their family property. That is not an act of the respondent and cannot affect her rights if they are otherwise enforceable.
·
On the whole we are of the opm1on that the judgment of the High Court is sound and that this , appeal
should be dismissed with costs.
Appeal dismissed.
ASA RAM
v.
THE DISTRICT BOARD, MUZAFF ARN A(jAR
(S. R. DAS, c. J., BHAGW ATI, B. P. SINHA,
SuBBA RAO and K. N. W ANCHOO, JJ.)
Conflict of Statutes-Two statutes conferring same p0cμier on
two different bodies-Construction-'Committee' and 'Panchayat', if
identical in meanning-Power to regulate, if includes power to
require taking out of licence-U. P. District Boards Act (U. P. X
of r922), ss. 93(3), ro6 and r74(r)(k)-U. P. Town Areas Act (U. P.
II of r9r4) as amended in r934, s. 26(a).
The ·appellant was running machines with the aid of power
in a locality which was admittedly within the Jalalabad Town
Area. He did not take out a licence for running the machines
as required by the Muzaffarnagar Factories Bye-laws fra~ed by
the respondent, the District Board Muzaffarnagar, .under
s. 174(1)(k) read withs. 106 of the U. P. District Boards Aot, and
was prosecuted by the respondent. The appellant contended
that the bye-laws did not apply to the town area and it w~s not
necessary for him to take out a licence. Section 174(1)(k) cof the
District Boards Act and s. 26(a) of the Town Areas Act both
provided for the regulation of offensive trades and admittedly
the trade carried on by the appellant was an offensive trade.
The District Boards had the power under s. 174(1)(k) to frame
bye-laws for rural areas which included town areas. Buts. 93(3)
of the District Boards Act took away the power of the District
Shri Kishori Lal
v.
M st. Challibai
Kapur].
December 3•.