JUDGMENT
S.K. Mukherjee, J.
1. This appeal is directed against the judgment and decree dated March 30, 1992 passed by the learned Additional District Judge, Eighth Court at Alipore, District: 24 Parganas (South) in Title Appeal No. 4 of 1990 reversing those dated September 7, 1989 passed by the learned Munsif, Third Court at Alipore, District: 24 Parganas (South) in Title Suit No. 601 of 1983.
2. The plaintiff/appellant instituted the present suit for ejectment and damages contending, inter alia, that she was the owner of premises No. 26/1A Manohar Pukur Road, Calcutta-29 and that one Kalipada Das, since deceased, was a monthly tenant under her in respect of a shop room. After the death of Kalipada, his tenancy devolved upon his widow Sabitri Bala. The plaintiff instituted Title Suit No. 275 of 1975 in the Court of the learned Munsif, Third Court at Alipore for eviction of Sabitri Bala, which was decreed, but the appellate Court set aside the decree and remitted the suit to the trial Court. During the pendency of the suit, after remand, Sabitri Bala died on January 11, 1982 leaving no heir and as such nobody could be substituted in the said suit. Ultimately, the said suit stood abated on February 23, 1983. The present defendants, who were employees of Sabitri Bala, were occupying the suit shop room as trespassers and as such the plaintiff was entitled to recover the possession of the suit shop room from such wrongful occupiers.
3. The defendant/respondent No. 1 contested the suit by filing a written statement wherein it was categorically asserted that he was the adopted son of Sabitri Bala and Kalipada and as such he has inherited the tenancy on the death of Sabitri Bala.
4. The learned Munsif by the judgment and decree dated September 7, 1989 decreed the suit on contest without cost against the defendant no. 1 and ex-parte without cost against the defendant No. 2. The learned Munsif held that there was no cogent and convincing material to establish the claim of the defendant No. 1 that he was the adopted son of Sabitri Bala and Kalipada.
5. Being aggrieved the defendant No. 1 preferred Title Appeal No. 4 of 1990 in the Court of the learned District Judge at Alipore, District 24 Parganas (South), which was eventually transferred to the Court of the learned Additional District Judge, Eighth Court at Alipore, District: 24 Parganas (South).
6. By the judgment and decree dated March 30, 1992 the learned Additional District Judge allowed the appeal and, consequently, dismissed the suit. The learned Additional District Judge held even assuming that the defendant No. 1 was not the adopted son of Sabitri Bala and Kalipada, he was not a rank trespasser as contended by the plaintiff, but his status was that of the licensee under the premises tenant. However, the learned Judge held that the defendant No. 1 was the adopted son of Sabitri Bala and Kalipada and, therefore, the present suit was not maintainable on account of non-substitution of the legal representative of Sabitri Bala in the earlier suit.
7. Being aggrieved the plaintiff has come up with this second appeal.
8. Mr. Sudhis Dasgupta, learned senior advocate, appearing in support of the appeal, strenuously argued that the learned Judge in the lower appellate Court applied wrong legal tests in holding that the defendant No. 1 was the adopted son of Sabitri Bala and Kalipada when essential requirements of adoption have not been proved. Mr. Dasgupta referred to Sections 4, 6, 7, 9, 10 and 12 of the Hindu Adoptions and Maintenance Act, 1956 (Act 78 of 1956) and argued that in the absence of any cogent material establishing fulfillment of essential requirements of adoption, the learned Judge in the lower appellate Court subsequently erred in law in holding that the defendant No. 1 was the adopted son of the erstwhile tenants. Mr. Dasgupta, further, argued that the defendant No. 1 produced no evidence as to the existence of relationship of the defendant No. 1 as the heir and legal representative of the erstwhile tenants in accordance with the provisions of clause (5) of Section 32 and Section 50 of the Indian Evidence Act, 1872. Mr. Dasgupta cited the decisions in the cases of Abdul Rahaman v. Halima Khatun and Ors., reported in 1980(1) CLJ 403, Dolgobinda Paricha v. Nimai Charan Misra and Ors., and Rahasa Pandiani (Dead) by LRs and Ors. v. Gokulananda Panda and Ors., . Mr. Dasgupta, finally argued that in an action of ejectment the plaintiff succeeds on the strength of his prior possession only, and, the defendant is not entitled to set up the right of a third party unless he claims under it and makes good that claim and in this connection he has heavily relied upon the decision in the case of Chaturbhuj Singh v. Sarada Charan Guha and Ors., reported in AIR 1933 Patna 6.
9. Appearing for the defendant/respondent No. 1 Mr. Soumen Kumar Ghosh, learned advocate, however, strenuously argued that the findings arrived at by the lower appellate Court are all findings of fact and as such not open to challenge in second appeal. Mr. Ghosh argued that in the earlier suit after the death of Sabitri Bala, no step was taken for substitution of the heir and legal representative of Sabitri Bala and as the plaintiff did not follow the requirements of Order 22, Rule 4A of the Code of Civil Procedure and in view of the abatement of the earlier suit, the present suit is not maintainable. Mr. Ghosh argued that the defendant No. 1 successfully discharge his burden to establish that he was the adopted son of the erstwhile tenants and as such he has inherited the tenancy. Mr. Ghosh in his turn cited the decisions in the cases of Asha Gupta and Anr. v. Sipra Dutta and Ors., reported in 80 CWN 187 and Saman Ram v. Mst. Kalawanti and Ors., .
10. After hearing the learned advocates in details, in my view, this appeal involves following substantial question of law:
11. Whether the Court of appeal below was justified in reversing the decree of the trial Court and in holding that the defendant No. 1 was the adopted son of Kalipada and Sabitri Bala, the erstwhile tenants of the suit premises, when there is no evidence to prove such adoption and when the defendant No. 1 claimed adoption on the basis of oral evidence, but failed to explain satisfactorily the existence of suspicious circumstances?
12. In order to appreciate the rival contentions, I am required to consider the scope of certain provisions of the said Hindu Adoptions and Maintenance Act, 1956. Under Section 4 of the said Act it is provided that the said Act will have overriding effect and the said Act supersedes the pre-existing Hindu Law of adoption as contained in any text, rule or interpretation of Hindu Law or any custom or usage as part of Hindu Law. Section 6 of the said Act mentions the requisites of a valid adoption. It is provided that the adopter should have the capacity and right to adopt; the person giving the child in adoption should have the capacity to give the child in adoption; adoptee is capable of being taken in adoption; adoption should, also, comply with the other conditions mentioned in the said Act. Section 7 of the said Act deals with the capacity of a male Hindu to take in adoption. Valid adoption can only take place when the capacity and the right of the adopter exist and in the absence of the either, the adoption will be invalid. Section 9 enumerates who are the persons capable of giving in adoption. Section 10 of the said Act lays down four requirements for a person to be adopted. In that view of the matter all other requirements under the old Hindu Law have been given a go bye. Under the present law as opposed to the old Hindu Law a daughter can. also, be adopted. The only requirements under the Act are:
(a) The child must be a Hindu.
(b) The child should not be an already adopted child.
(c) The age of the child should be below fifteen years.
(d) The child should not be a married child,
13. However, the said last two conditions can, also, be waived if custom permits such adoption.
14. Section 11 of the said Act lays down other conditions of a valid adoption and the said section deals with several matters in relation to adoption and with the formalities necessary for a valid adoption.
15. Section 11(vi) runs as under:
“(vi) The child to be adopted must be actually given and taken in adoption by the parents or guardian concerned or under their authority with intent to transfer the child from the family of its birth (or in case of an abandoned child or a child whose parentage is not known, from the place or family where it has been brought up) to the family of its adoption.”
16. Section 12 deals with the effect of adoption. Under Section 12 an adopted child shall be deemed to be the child of his or her adoptive father or mother for all purposes with effect from date of his or her adoption and from such date all ties of the child in the family of his or her shall be deemed to be terminated and replaced by those created by adoption in the adopted family. Under Hindu Law the adoption of child means that the child is totally uprooted from his or her original family and transplanted in the family in which he or she is taken in adoption.
17. The learned Judge in the lower appellate Court held that the defendant No. 1 is the adopted son of Kalipada and Sabitri Bala, but there is no cogent evidence on record regarding such adoption. It has not been proved that the defendant No. 1 was actually given and taken in adoption by Kalipada and Sabitri Bala. The persons present at the time of adoption did not come forward to depose. The defendant No. 1, in my view, failed to prove valid adoption as per Hindu Adoptions and Maintenance Act, 1956. The requirements of the Act. more particularly, as mentioned in Section 11(vi) of the said Act, has not been established. Fosters son and adopted son do not stand in the same footing. The defendant No. 1 in his deposition clearly stated that he had performed the funeral rights of his biological parents. No disinterested witness deposed in this case in support of the defence plea regarding ceremony of adoption and in view of performance of the funeral rights of his natural parents by the defendant No. 1, the entire claim of the defendant No. 1 falls through. No explanation has been offered as to why in the earliest suit, when Sabitri Bala was substituted in stead and place of Kalipada, the defendant No. 1 did not come forward for his substitution in that suit. It is on record that Sabitri Bala never disclosed in the earlier suit that they had an adopted son. In the earlier suit on the death of Kalipada, Sabitri bala was substituted. She never took any objection regarding non-substitution of defendant No. 1 being the adopted son of Kalipada.
18. The learned Judge in the lower appellate Court heavily relied upon the deposition of defendant’s witness No. 4 about the adoption of defendant No. 1 by Kalipada and Sabitri Bala. The defendant No. 4 categorically stated that he had papers to show that he has inherited the properties from Kalipada and Sabitri Bala as their grandson. If the claim of defendant No. 1 is accepted that he was the adopted son of Kalipada and Sabitri Bala, there could be no question of inheritance of properties left by Kalipada and Sabitri Bala by the defendant No. 4 as their heir.
19. In the absence of evidence of a valid adoption, including the evidence of giving and taking, and in view of the subsequent conducts of Sabitri Bala and that of the defendant No. 1 himself negates his claim of adoption. In my view, the defendant No. 1 has failed to explain satisfactorily the existence of suspicious circumstances in the matter of his alleged adoption by Kalipada and Sabitri Bala. In my view, the learned Judge in the lower appellate Court applied wrong legal tests and failed to consider the evidence of defendant No. 1 and 4 and committed a substantial error of law in reversing the findings of the learned trial Judge, who had the opportunity to see the demeanour of the witnesses. In the absence of proper evidence the learned Judge in the lower appellate Court ought not to have automatically accepted the contentions of the defendant No. 1 and ought not to have held that the adoption had taken place. Though religious ceremonies are not necessary for adoption, but a formal ceremony of giving and taking has to be established. The defendant No. 1 claimed to be an adopted son of Kalipada and Sabitri Bala and as such it was his duty to produce convincing evidence to prove adoption. In my view, in the instant case sufficient evidence was not on the record to accept the claim of the defendant No. 1, but the conduct of the parties even after the alleged adoption was inconsistent with the adoption having taken place. Therefore, in the absence of evidence of giving and taking ceremony, adoption of the defendant No. 1 could not be proved.
20. It has been proved that the plaintiff is the owner of the suit premises and the defendant No. 1 has no right, title and interest in respect of suit premises as a tenant inasmuch as his claim that he was the adopted son of Kalipada and Sabitri Bala has not been proved. The defendant No. 1 having failed to prove himself to be the adopted son of the deceased tenants, the learned Judge in the trial Court, in my view, rightly decreed the suit in favour of the plaintiff, which required no interference by the lower appellate Court. Non-substitution of the heirs and legal representatives of Sabitri Bala In the earlier suit has no bearing the present case. None of the heirs and legal representatives of Sabitri Bala has come forward to claim the tenancy. On the contrary, the alleged natural heirs by their conducts relinquished their right inasmuch as some of them came forward to depose in this suit, but never claimed the tenancy. On the basis of the materials on record a clear case of Implied surrender could be easily inferred. The defendant No. 1 has failed to prove his claim to retain possession. Accordingly, he must vacate in favour of the rightful owner.
Accordingly, the judgment and decree passed by the lower appellate Court is set aside and those of the learned Munsif are restored.
The appeal is, thus, allowed without, however, any order as to costs.
Photocopies of this judgment and decree, if applied for, are supplied to the parties on urgent basis.
