JUDGMENT
Mahapatra, J.
1. This appeal by defendant No. 4 arises out of a suit for partition of properties belonging to a Hindu joint family of which the common ancestor was Jagarnath Prasad Bhagat. He had two sons, Sarda Prasad Bhagat and Jaikishun Prasad Bhagat. The latter was impleaded as defendant No. 3 and his sons were defendants No. 4 to 9. Sarda Prasad Bhagat had two wives, Mt. Laxmi Devi and Mt. Muni Devi. They were defendants T and 2. Plaintiffs Ramkumari Devi and Kamla Devi are the daughters of Sarada Prasad Bhagat by his first wife Mt. Laxmi Devi. The common ancestor died on the 28th June, 1934, and Sarda
Prasad Bhagat, who was a medical practitioner, died on the 19th December, 1957. The properties described in Schedule 3 of the plaint were left by tbe common ancestor Jagarnath Prasad Bhagat and the properties in Schedules 1 and 2 were said to be the self acquisitions of Dr. Sarda Prasad Bhagat. Plaintiffs claimed one-third share in Schedule 3 and two-third share in Schedules 1 and 2 properties. The moveables were mentioned in Schedule 2 of the plaint.
2. The plaintiffs’ case in brief was that their father. Dr. Sarda Prasad Bhagat, had a lucrative medical practice at Darbhanga and owned a pharmacy known as National Medical Hall, of which he was the sole proprietor. Out of his own earnings, he acquired for himself enormous properties which were described in Schedules 1 and 2 of the plaint. The plaintiffs were entitled to two-third share in those properties, the remaining one-third belonging to their mother and step-mother who were defendants first party. Dr. Sarda Prasad was separate from his brother Jaikishun Prasad, defendant No. 3, but both the brothers maintained good relationship in spite of that and Sarda Prasad used to depend upon his brother for many things including the acquisition of his own property. The ancestral properties mentioned in Schedule 3 were, however, not partitioned by metes and bounds and in that the plaintiffs’ father was entitled to half and the branch of his brother, defendant No. 3, the other half. The plaintiffs are entitled to two-thirds of their father’s share which comes to one-third of the whole properties in Schedule 3. It was alleged that defendant No. 3 cherished dishonest intention with regard to the properties acquired by his brother Or. Sarda Prasad and secretly manipulated some documents without the knowledge of the plaintiff’s father with a view to depriving the plaintiffs of their legitimate share. The plaintiffs’ stepmother, who is defendant No. 2, happens to be the full sister of the first wife of defendant No. 3, and, as such, she is in his clutches. Plaintiffs’ mother being an illiterate pardanashin lady is unable to protect the interest of herself and her daughters. On these allegations the plaintiffs claimed partition of their share. A genealogy was given in the plaint which was not in dispute.
3. The defendant No. 1 filed a written statement which supported the plaintiffs’ case, while that of defendant No. 2 (plaintiffs’ step-mother) went in aid of the contesting defendants. A formal written statement was filed on behalf of the minor defendants, but the main contest was by defendants 3 and 4 who filed two separate written statements but to the same effect. Their main plea was that defendant No. 4 was adopted by Dr. Sarda Prasad Bhagat in Magh 1352 in the Kritrim form as his son, with his consent. It was further claimed in the written statement of defendant No. 3 that another of his sons, defendant 7, was also adopted as a Karta Putra by defendant No. 2, Mt. Muni Devi. The properties in Schedules 1, 2 and 3 of the plaint were claimed to belong to the joint family and all the income of Dr. Sarda Prasad was said to have been thrown in the joint family fund. A family business of glass wares run in the name of Messrs. Shila Stores at Darbhanga and a house in mahalla Ram
in the same town purchased from Mahadeb Bhagat were said to be joint family properties, which should have been included in the plaint. The defence of both the defendants 3 and 4 amounted to saying that they had no objection to partition provided it was done on the basis that defendant No. 4 was the adopted son of Dr. Sarda Prasad and defendant No. 6 was the adopted son of defendant No. 2, and that all the properties given in the plaint as well as two other items pointed out in the written statement were treated as joint family properties. The parties went to trial with their respective cases as stated above.
4. The trial Court examined the evidence adduced before it and held that all the properties, except item 2 of Schedule 1 of the plaint, belonged to the joint family. About the moveables, it was of the view that they were as inventoried by the pleader-commissioner. Two items of property pointed out in the written statement were not accepted by the Court below as in existence or partible. The story of adoption of defendant No. 4 was not found proved. In the result, the suit was decreed in part for partition of the plaintiffs’ one-third share in the suit properties except item No. 2 of Schedule 1, with full cost on contest against defendants 2 to 9 and without cost against defendant No. 1. All the parties except defendant No. 4 remained content with the decree. The present appeal was by defendant No. 4, and the only point convassed before us was that he was adopted by Dr. Sharda Prasad in the Kritrima form as prevalent in Mithila, and on that footing, he was entitled to his legitimate share in the suit properties.
5. The trial Court found against the appellant and rejected both the oral and documentary evidence adduced in support of his alleged adoption, mainly on the view that it took of some of the exhibits in which Umesh was described as the son of Dr. Sarda Prasad Bhagat. From the treatment of the evidence by the Court below, it appears that the trial Judge concentrated more on the documentary evidence than the oral. Learned counsel for the appellant contended that the assessment of the documents exhibited by the parties during the trial was not only defective but also erroneous. The main thesis of the trial Court as contained in the finding that defendant No. 3, Jaikishun Prasad Bhagat, natural father of defendant No. 4, Umesh Bhagat, had hatched a scheme of fraud against his brother, Sarda Prasad Bhagat, from January 1947, was seriously challenged. It is true that, on that view, the Court below discarded series of document from 1947 to 1957, in which Umesh was described as son of Dr. Sarda Prasad. It will be worthwhile in this appeal to deal with the documentary evidence first because that would be a surer test of the truth or otherwise of the case of the respective parties.
6. Basant Panchami in the month of Magh, 1352, corresponds to the 18th of January, 1945, and that was the day on which it was alleged that the adoption of Umesh (defendant No. 4) to Dr. Sarda Prasad took place. In the written statement, defendant No. 4 categorically stated that the adoption was in Kritrim form. Defendant No. 3 in his written statement also stated the same, but the trial Judge, curiously enough viewed that statement with suspicion for the simple reason that the words “in Kritrim form” were written in hand in the written statement, whereas the whole of written statement was typed. fail to see any justification for any suspicion on this account. Corrections are usually made when the final typing is done before the document is put into Court and if, at that stage, the lawyer concerned thought it proper to particularise the form of adoption by mentioning “in Kritrim form”, there was nothing wrong about it. The fact that defendant No. 3’s written statement was filed on the 28th of November, 1958, and that ,of defendant No. 4 on the 4th of February, 1959, has no significance. On the other hand, the mention of “in Kritrim form” in the former written statement which, was also repeated in the latter, indicates the positive case of the mode of adoption.
7. The Kritrim form of adoption of a son is peculiar tc the Mithila School of Mitakshara Hindu law. In that school, the commentaries (Nibandhas) like Vivada Chintamani and Vyava-bara Chintamani by Bachaspati Mishra are regarded as binding force. The Judicial Committee in Mt. Thakur Deyhee v. Rai Baluk Ram, n Moo Ind App 139 (PCJ at p. (174) observed that Vivada Chintamani was of paramount authority of the Mithila School of Hindu Law. In Mithila, a Panjikar maintains the names and family history of Mithila Brahmins for the purpose of avoiding marital unions within the prohibited degrees. When a son is adopted in Dattaka form, the name and the Gotra of the adopted boy undergo a transformation and he relinquishes the Gotra of his original family and is initiated to the Gotra of the adoptive family. It was thought that this change of name and Gotra of the adopted boy would create some confusion in the records of the Panjikar in Mithila if the changes are not properly noted in that record at proper time. Prominent Nibandhakars like Shree Dutia and Pratihasta resolved that adoption in Dattaka form should be discontinued in Mithila and in its place, the Kritrim form should be introduced. A son adopted in that form is known as Karta Putra who retains his name and Gotra of the original family and does not lose his right in the property of his natural father. Kritrim form of adoption should not be confounded with the adoption of a Kritrima ton. The latter is in accordance with the Smritis and commentaries, and holds the same position as a Dattaka son, and the ceremonies and conditions are identical in both cases, The modern form of Kritrim adoption, as is prevalent in Mithila, is based upon recent authorities, and owes its origin to the adverse view taken by the Nibandhakars of Mithila on the competency for adoption, of a Hindu widow- In this form of adoption, either a man or a woman having no son can adopt; a wife or widow does not require the assent of her husband or of his kinsmen before she adopts a SON. She cannot adopt a son to” her husband in this form. A husband and wife can adopt jointly, or they may each adopt a separate son under this form. Except that the adopted son must belong to the same class as the person adopting him, there is no restriction as to the person to be adopted. No ceremonies are necessary and no particular form is required to be observed. The only essential procedure to be followed is stated by Rudradhara in his Suddiviveka. Colebrooke has given the citation, translated as follows:
“At an auspicious time, the adopter of a son having bathed, addressing the person to be adopted, who has also bathed, and to whom he has given some acceptable chattel, says, ‘Be my son’. He replies, ‘I am become thy son’. The giving of some chattel arises merely from custom. It is not necessary to the adoption. The consent of both parties is the only requisite; and a set form of speech is not essential.” (See also Trevelyan’s Hindu Law, 3rd Edition, p. 169).
Sri Hari Singh Gour in his Hindu Code 4th
Edn. at p. 268, while dealing with the incidence of Kritrim form of adoption has observed as follows : –
“The Kritrim son of old was recognised subsidiary son like the ‘Swayamdatt’ or ‘self-given’
son, from whom he was scarcely distinguishable except that the Kritrim was an orphan and was hired by the wealth of his adopter to accept the proposal to become his son, while a Swayamdatt was one who, being abandoned by his parents, did the same. Both these sons have long since become obsolete; and the Kritrim son whose adoption is recognised in Tirhut is quite a modern institution engrafted on the old texts and said to flow from the absolute incompetency of
a widow to adopt to her deceased husband. ‘The
practice (says Mr. Colebrooke) of adopting sons
given by their parents was there abolished by
Shridutt and Pratihast, although the latter had
been himself adopted in that manner. Their
motive was lest a child already recognized in
one family, being again registered in another, a
confusion of families should thence ensure’.”
Thus it is clear that the Kritrim form of adoption is a peculiar institution among the inhabitants of Mithila (Tirhut Division), and does not
require, for its validity, any particular form or
ceremony or exchange of pledge or promise.
There is no restriction about the age or status
of the adopted person. The assent of both par
ties is the only requisite, but if the adopted
child is of very tender age, his assent can only
be indicated by his remaining at and after adop
tion, with the adopter. In case the adoptee is a
minor and of an age incapable of giving consent
to his adoption, his parents’ consent
to his adoption is taken as the
proper substitute. It is in this light
that the evidence in the present case must be
viewed before a, conclusion is taken about the
adoption of defendant No. 4 to Dr. Sarda Prasad
Bhagat.
8. Learned counsel for the plaintiff-respondents emphatically urged that the consent of the adoptee and not of his parents is essential for a valid adoption in Kritrim form. As Umesh was only five years’ old at the time of adoption, he could not have been able to give any consent and as such, his adoption would be invalid. If that contention is accepted, it will mean that no
child before his age of discretion when he is able to give his consent, can be taken in adoption. It is far from what was sought to be introduced in Mithila as a substitute for the Dattaka form of adoption. The evolution of a new form was
not with a view to excluding a child of tender age from adoption, who could be an object of
adoption in Dattaka form.
Learned counsel for the respondents referred to a few decisions to support his argument. In the case of Kanhaiya Lal Sahu v. Mt. Suga Kuer, AIR 1926 Pat go the plaintiff claimed to have been adopted by one Khub Lal as his karta Putra. After the death of Khub Lal, a posthumous son was born to him who, however, died shortly afterwards. A dispute arose between the plaintiff and the widow of Khublal. The plaintiff claimed that he was entitled to succeed to the estate of Khublal to the exclusion of his widow as her claim, if any, was not as an heiress of Khub Lall but as an heiress of her deceased son. The District Judge had found that the adoption was not proved, and that if the plaintiff could have established his adoption, he was entitled to one-fourth share in the estate of Khub Lal. The High Court took a different view on both the points. It was held that the plaintiff, on facts, proved his adoption, yet he was not entitled to succeed to the estate of Khub Lal as a son had been born to Khub Lal, subsequent to the plaintiff’s adoption. The learned Judge, however, stated that he did not propose to enter upon the question whether the adoption of a Karta Putra was an adoption in the Kritrim form as that was not material to the litigation.
He observed that the system as to karta Putra was an extension of the Kritrim form of adoption. He observed at another place that no ceremonies or sacrifice were necessary to the validity of that particular form of adoption and all that was necessary was the consent of the adoptee which, involved the adoptee being an adult. The reference to the adoptee being an adult in that judgment was very much stressed upon by learned Counsel, but that was only a casual observation and was not in any way connected with any of the facts or law involved in that case. In view of what the learned Judge stated previously that he did not propose to enter upon that question, no firm conclusion can be based upon his latter casual observation in that connection.
9. In the case of Lalita Prasad v. Sarnam Singh, AIR 1933 Pat 165 the question was it the adoption was in Dattaka form as alleged by the plaintiff. The adopted boy was about 5 01 6 years’ old. In the judgment, certain passages were quoted from Mayne’s Hindu Law, in which the Kritrim son as described by Manu was referred in. It was to the effect that
“the adoptee shall be equal in class with the adopter and shall be endued with filial virtues, acquainted with the merit of performing obsequies to his adopter and with the sin of omitting them.”
The learned Judge, after the quotation, clearly observed that in that passage Mr. Mayne was
“considering the question not whether the adoption in the Kritrim form may or may not be performed when the adoptee is not an adult but whether such adoption can be performed when he is an adult as contra-distinguished from the Dattaka form of adoption in which the adoptee must not be an adult and in which there is a limit of age as dealt with by him in Section 140 of his treatise.”
Learned Counsel wanted to place emphasis upon the observation of Mr. Mayne and contended that if the adoptee was to be acquainted with the merit of performing obsequies to his adopter and with the sin of omitting them, he cannot but be of sufficient age, to realise such obligations and moral consequences of adoption; but, as pointed out by the learned Judge, the purpose of Mayne’s observation was entirely different. In that reported case, the decision in AIR 1926 Pat go was referred, in which there was a casual remark in the following language. I may repeat that here:
“No ceremonies or sacrifice are necessary to the validity of the particular form of adoption. All that is necessary is the consent of the adoptee which involves the adoptee being an adult”.
Dealing with this, the learned Judge observed that the question whether a minor could or not be adopted in the Kritrima form was not raised in that case and that question was not considered in the judgment, but a stray remark was made which however is not a decision which could be cited as an authority. Coming to the facts of the case before him the learned Judge held:
“I am therefore of opinion that the fact that Bajrangi Lal was a minor at the date of his adoption does not necessarily go to prove that the adoption was in the Dattaka form and not in the Kritrima form. It is contended that from the recital in the will that Bajrangi Lal was adopted with the consent of his parents, it would appear that the adoption must have been in the Dattaka form. The quotations from the textbooks cited above, go clearly to show that the consent ‘ of the parents is necessary in the Kritrima form of adoption when the adoptee is a minor. This fact also does not necessarily show that the adoption must have been in the Dattaka form”.
Thus the ultimate decision of this case does not support the respondents’ contention. On the other hand it is established that when the adoptee is a minor, his adoption in Kritrim form will be valid if the consent of his parents is taken instead of his.
In the case of Gokhul Rai v. Mt. Janki Kuer, AIR 1955 Pat 487 nothing more than that the consent of the adoptee, when he is sui juris is absolutely necessary for the validity of the adoption, but if he is a minor the adoption will be made if he has attained years of discretion and his parents’ consent to the adoption, was held. In that case, the plaintiff claimed to have been adopted by one Posan Rai as Karta Putra. There was a registered document in support of that adoption. The plaintiff lost his suit and
in appeal, on his behalf, it was contended that the trial Court had misconceived the position of law in regard to the adoption of a Karta Putra, inasmuch as, it thought that some religious ceremony was necessary and the association of the wife of the adopter with the ceremony of adoption was imperative. The High Court found, on reading the judgment of the original Court, that that was not the approach of the trial Judge. The way in which the adoption was alleged to have taken place was scrutinised with reference to the evidence adduced on the side of the plaintiff and the fact of adoption was negatived. While dealing with the argument that no ceremony whatsoever was necessary for adoption in that form, the learned Judge agreed with that contention “and while doing so, observed that the consent of the parents of the adoptee if he was minor was only necessary. His Lordship referred to the case of AIR 1926 Pat 90 and another case of this Court — Sabitri Thakurain v. Mrs. S. V. Savi, AIR 1933 Pat 306 and some texts on Hindu law. I do not find that in any of the reference, there was’ any mention that the minor adoptee must attain years of discretion before adoption. Learned counsel is, therefore, not justified in placing unusual emphasis on the slight qualification that appears to have been put at one place in the judgment on the adoptee having attained years of discretion.
10. The case of Luchmun Lall v. Mohun Lall Bhaya Gayal, 16 Suth WR 179 was also cited. There an adoption in the Dattaka form was under consideration, but as an alternative case it was argued that, at any rate, the adoption set up by the defendant could be taken as one in Kritrim form. That was repelled mainly on the ground that no such case was made out in the written statement or in evidence in the trial Court. It was also stated in the judgment that there was also no proof whatever that the defendant was a consenting party to the adoption, such consent being essential to the adoption in Kritrim form. It is not possible to ascertain from the judgment what was the age of the adoptee at the time of the alleged adoption. In absence of any material to indicate that part, no support can be derived from the reported decision to contend that consent must and necessarily be of the adoptee and when he is not able to give such consent being of tender age, the adoption will be invalid.
11. Golapchandra Sarkar Sastri in his treatise on Hindu law (see page 228) has observed :-
“According to the Smritis and the commentaries, the Kritrima form differs from the Dattaka only in this, that in the latter the boy is given in adoption by his natural parents or either of them, whereas in the former, the consent of the by only is necessary who should therefore be destitute of his parents, and thus sui juris, so as to be competent to give his assent to his adoption; in all other respects there is no difference between the two forms.”
The Kritrim form, referred to here, is entirely different from the Kritrim adoption introduced in Mithila. The author also says :
“The so-called Kritrima adoption that is now in universal use in Mithila appears to be a modern innovation and altogether a different institution from that dealt with in Hindu Law,”
Unfortunately, more often than not, a confusion has arisen on account of the use of the same word “Kritrim” in both the cases — Kritrim son and Kritrim adoption of a Karta Putra. That explained why some of the elements necessary for one form of adoption (the Kritrim son of ancient time) were mentioned, while the other form (the recent Mithila form of Kritrim adoption) was under consideration, and that was how words like ‘sui juris’, ‘age of discretion’ and ‘adoptee being an adult’ crept into some of the judgments.
12. Thus there is no doubt that for a valid adoption in Kritrim form, as prevalent in Mithila, consent of the adoptee, if he is capable of giving such consent, or of his parents, if he is a minor or of tender age, is all that is necessary and no ceremony is required. There is no restriction of age or status for the adoptee. It is only a contract of sonship and the relationship does not go beyond the adoptive father or mother or both, if they jointly adopt a son. The adopted person does not lose his rights, name or Gotra, as a son in the family of his natural father. This is a peculiar institution brought into universal acceptance in Mithila which has received unanimous recognition from all Courts.
13. For the respondents, it was urged that when there was no document to witness an adoption and oral evidence is all that was brought before the Court, particular care and caution shall have to be exercised in considering them and excluding all suspicious features. Broadly speaking, there cannot be any controversy about it. Learned counsel referred to the cases of Kamla Prasad v. Murli Manohar, AIR 1934 Pat 398 and Kishori Lal v. Mt. Chaltibai, AIR 1959, SC 504 to support that view.
14. Besides oral evidence the appellant relied upon several documents exhibited in the case to show that defendant No. 4 had been adopted as a son to Dr. Sarda Prasad Bhagat. The earliest of these documents is Ext. 14 (a), a portion of the register for admission of students to the primary school of Darbhanga Municipality. The name of the student admitted was Umesh Pd. Bhagat. His father’s name was given
as Dr. Sarda Prasad Bhagat. The date of his birth was given 22nd January, 1940, and the age at the time of admission was 7 years. Different portions in that admission register were exhibited as Exts. 10 (f), 10 (j), 10 (1) and
15 (b). This admission took place on the 22nd of January, 1947, as noted with the signature of
the headmaster. No doubt, Jaikishun Prasad Rhagat, defendant No. 3, went to the school at the time when Umesh was admitted, as it appears from the entry in column 9 of the register. The trial Court thought that this was the starting point of fraudulent machination by Jaikishun to pose his son Umesh as the son of his brother Dr. Sarda Pd. The reason for this view was given as the omission of any reference to a transfer certificate of Umesh which was taken from the new L. P. school at Jurawan Singh (Darbhanga town)
on the 16th of January, 1947 (Ext. 16). Obviously that certificate was not used when Umesh was, admitted to the primary school of Darbhanga Municipality on the 22nd of January, 1947. The transfer certificate (Ext. 16) described Umesh as son of Jaikishim Bhagat. At the time of his admission into the new L. P. School at Jurawan Singh his alleged adoption had not taken place. So, there was nothing strange then in the description of his name as son of his natural father.
The date of birth in the first school was given as the Sth January, 1938, and he was admitted into that school in 1943. Whether the date given there or the date given in the admission register (Ext. 14 (a) J is correct is immaterial for the purpose of this case. If 1938 January is taken as correct, Umesh would have been 7 years old at the alleged adoption and might have been in a position to agree to his adoption when his adoptive father would have asked him to be taken in adoption. When he was admitted to the primary school of the municipality, he was stated to have gone to that school for the first time, without being a student in any other school previously. Reduction of age in school register is a notorious and common practice in this country and is resorted to, not always, for any particular purpose or with any motive. Sometimes, parents try to keep the age of the boy at a low level to enable him to take more than one chance for entering into Government service where the age limit ordinarily is 25 years. It may be, in order to introduce a lower age in the school register, it was attempted, while admitting Umesh into a Municipal school, to pose that to be the first entrance into a school so that there would be no necessity of any reference to a transfer certificate from the previous school.
In Ext. 16 Umesh was described as son of Jaikishun. If the alleged adoption had already taken place by the time the transfer certificate was taken, there would have been difficulty in describing Umesh as son of Dr. Sarda Prasad in the admission register of the Municipal School in 1947 unless the transfer certificate was completely omitted from reference. Perhaps, affidavit or other kind of proof of adoption would have been insisted upon by the school at that stage, if a different parentage was to be noted in the register with reference to the transfer certificate. To avoid such complications, the easier way was obviously to pose Umesh as going to the school for the first time. The admission was to class TV of the primary school and the boy was of tender age. There was no difficulty for the course adopted.
There was no reason, at least nothing was suggested in cross-examination of Jaikishun Bhagat, that he would have hatched a mischievous plan against his brother as early as 1947 January. There was cordial feeling between the two brothers and Jai Kishun was not burdened with many children by that time. On the i6th January, 1947, when Jaikishun took the transfer certificate of Umesh he had not the slightest compunction to acknowledge the receipt of the transfer certificate on the counterfoil in the register of transfer certificate. If his mind was oppressed with a fraudulent scheme in January 1947, it would have been simple enough for him to putt his signature on the back of the counterfoil to endorse the receipt without stating elaborately that he had received the transfer certificate of his son. There was nothing to indicate that between the 16th and 22nd January anything occurred to justify a sudden change in his mind to adopt the course of a villain by misrepresenting in the municipal school admission register the father’s name of Umesh. The Trial Judge has not given any reason whatsoever to justify his inference that the 22nd January, 1947, was the starting point of fraud by Jaikishun against his brother Dr. Sarda Prasad. No doubt the statements appearing in Ext. 14 (a) were made by Jaikishun and they are not binding as admission; against the plaintiffs but, all the same, that & an important piece of evidence very much relevant to the point at issue and unless something, substantial is shown against its acceptance, it will go a great way to support the alleged adoption.
15. The corresponding transfer certificate taken from the same school on the 6th of January, 1949, is Ext. 16 (a) and there Umesh was also noted as son of Dr. Sarda Prasad Bhagat. One Shakti Nath Jha purports to have received the certificate from the School. In between the dates of admission and transfer certificate a sale-deed appeals to have been taken in the name of Umesh Prasad Bhagat on the 15th June, 1948, which was marked as Ext. 17. There Umesh has been named as son of Jaikishun Bhagat. The property covered by the sale-deed was claimed in the written statement as belonging to defendant No. 4 exclusively. In deposition, Jai Kishun pretended not to know who got that sale-deed executed, but he admitted that lands were purchased from Nand Lall in the name of Umesh about three years after his adoption. Ext. 17 is a certified copy of the sale-deed. The materials on record are not sufficient to indicate whether at the instance of Jai Kishun or Dr. Sarda Prasad the sale-deed was taken in the name of Umesh.
A son who is adopted in Kritrim form in Mithila does not lose his original right? with his natural parents and the name of such adoptee-continues in the records of Panjikar as son of his original father. In view of this dubious nature, the father’s name is not unlikely to be mentioned at some places as that of the original father, Tt may be that while taking the sale-deed in the name of Umesh, no particular instruction was given to the scribe to describe the name of his adoptive father. In any case, if Jai Kishun had conceived the scheme in his mind to falsely create documentary evidence describing Umesh as son of Dr. Sarda Prasad and if that would have been the reason for his resorting to give such description in the Municipal School admission register in January 1947, he would have continued the same scheme in the sale-deed (Ext. 17). After all, the sale-deed is one executed by a third party who has not been examined in the case. In what circumstances he described Umesh as son of his natural father and why he did so is a matter for him to explain. The original sale-deed was not forthcoming, in such circumstances, mention of Jai Kishun as the father of Umesh can not go to counteract the entries in the school admission register (Ex. 14-A).
Ext. B-1 is a letter from the Principal, St. Michael’s High School, Kurji, Patna, in which the Principal stated that he had received the form of admission of Umesh Prasad Bhagat, son of Sarda Prasad Bhagat, and had registered his name for that purpose. He asked for payment of Rs. 12/- as the registration fee from Sarda Prasad Bhagat. Ext. C-1 is the postal envelop in which this letter, was sent to Dr. Sarda Prasad Bhagat. The letter is dated the 18th of December, 1952. Ext. D-1 is postal money order acknowledgment showing the remittance and receipt of Rs. 12/- as referred to in Ext. B-i, and Ext. A-1 is an entry in the daily collection book of St. Michael’s High School showing the receipt of Rs. 12/- sent by Sarda Prasad Bhagat to the Principal. These two documents are of the 27th of December, 1952. The writing in the money order form was identified by D. W. 15 (D. W. 3) jai Kishun, to be in the pen of Sarda Prasad. There was no cross-examination about that part of his deposition.
The, trial Court took all the four documents with suspicion thinking that Jai Kishun might have written the letter to the principal falsely alleging that to be from Dr. Sarda Prasad and the money order might have been similarly remitted in his name. The letter sent to Dr. Sarda Prasad from the principal might have been taken from the post-office by Jaikishun without Sarda Prasad knowing about it because that letter was not under registered post. The main reason for this kind of suspicion was, as stated in the judgment, on account of the view taken by the Court
below about the school admission register (Ext.
14-a). Nothing was suggested in cross-examination to Jaikishun to the effect that the letter
sent to St. Michael School, as referred in Ext. B-1, was by him or that the reply from the principal was taken away by him and he had remitted money to that school falsely in the name of his brother, fn absence of any suggestion of ibis nature, it was not proper for the Court below to make such castigating surmises about these documents coming from disinterested third parties.
There was an argument before us that Dr. Sarda Prasad being a man of status, it would not have been unusual for Jaikishun or for the matter of that for Dr. Sarda Prasad to approach St. Michael School for admission of Umesh representing him to be the doctor’s son with a view to facilitate his admission there, and in that view, not much emphasis should be placed
on Exts. C-1, D-1, B-1 and A-1 in that connection. There is no suggestion in evidence that any difficulty for Umesh’s admission into St. ‘Michael School was anticipated. The name ot the boy was only to be registered at the first instance and then the question of his admission would be decided on the merits of the candidate. The principal’s letter (Ext. B-1) made it clear when he asked the boy to be produced any day before the 27th January, for test. In such circumstances it cannot be accepted that the correspondence and the remittance of money were without the knowledge of Dr. Sarda Prasad or by him making a false representation about the parentage of Umesh. In my view, these documents are in support of the adoption.
16. There was a title suit in 1957 (No. 24 of 1957) in the Court of the second Munsif, Dar-bhanga, where Dr. Sarda Prasad along with’ other members of the family were the plaintiffs. The plaint and the vakalatna-ma filed in that suit were marked as Exts. 4 and 5. The vakalatnama was received by the lawyer who accepted it from Jaikishun vide Ext. 9. The plaint was on the 9th of February, 1957. Both in the plaint and the vakalatnama Jaikishun signed as for himself and as father guardian of his children including Umesh Prasad Bhagat, defendant No. 4. Such was also in the Vakalatnama. A miscellaneous appeal (No. 59 of 1957) was also filed by those plaintiffs on the 9th of May, 1957, and a vakalatnama was also executed there. The memorandum of appeal and the vakalatnama were marked as Exts. 19 and 5 (a)(?), respectively. Endorsement of acceptance of the vakalatnama was Ext. 9 (a). Both in the memorandum of appeal and the vakalatnama Jaikishun appeared as father guardian of Umesh. Great stress was laid on these documents to contend that the cloak of false adoption could not be brought on these documents by Jaikishun as that would have been detected by Dr. Sarda Prasad who was also a party to those documents. The trial Court took the same view.
The description of Umesh in those documents was not by him or at his instance. They will not be any admission binding upon him. Soon after Umesh became major in 1958, it appears by an application made in Court in Title Suit No. 24 of 1957 on the 18th of March, 1958, he disputed his description as given in the original plaint and asked for amendment of the plaint by describing him as the adopted son of Dr. Sarda Prasad Bhagat. By that time, of course, Dr. Sarda Prasad Bhagat had died. This petition was proved by the plaintiffs as Ext. 8. The first order passed on that petition has not been proved but it is not suggested by the plaintiffs that the amendment was not allowed. In view of this amendment applied for by Umesh, the mention of Jaikishun as his father in the original plaint and in the vakalatnama or in the Memorandum of appeal arising from that, loses its significance against the ,case of defendant No. 4, about his adoption. That meticulous care was not taken in describing facts in the plaint, Ext. 4, is apparent from the fact that the verification, to which the signature of Jaikishun Prasad Bhagat was also appended, mentions the document to be a ‘written statement’.
On the 4th of July, 1958, Umesh made another application in that title suit (Ext. 8-a) to counteract the application by Muni Devi, the second widow of Dr. Sarda Prasad, in which she had asked for substitution of Suresh Prasad Bhagat, defendant No. 7, in place of Dr. Sarda Prasad as he had been adopted by her. In that petition, Umesh also asserted himself as the adopted son of the original plaintiff No. 1, Dr. Sarda Prasad Bhagat deceased and asked his name to be substituted in place of the deceased. Perhaps though this petition was ready on the 4th of July, it was not filed in Court till the 2nd of September, 1958, but that does not make any difference in position. From Ext. 20, a petition made on behalf of Raghunath Khatik and others, appellants in a second appeal in the High Court on the 18th March, 1958, it appears that the appellants asked for substitution of the legal representatives of Dr. Sarda Prasad Bhagat, who was appellant No. 3, as he was dead. There it was mentioned that Sri Umesh Prasad Bhagat also claimed to have been adopted by Dr. Sarda Prasad Bhagat.
These three documents proved on the side of the plaintiffs clearly show that Umesh on his attaining majority asserted his adoption and asked for correction of the plaint and also for substitution in place of Dr. Sarda Prasad. On the 18th of March, 1958, an application was made by Mt. Muni Devi and Suresh Prasad Bhagat in that Title Suit No. 24 of 1957 for substitution of the names of those two petitioners in place of Dr. Sarda Prasad. What orders were finally passed about substitution has not been proved on either side. It is worthy of note that the present suit was filed on the 24th of April, 1958.
Thus it appears that when Umesh asserted his adoption in the title suit asking for amendment of the plaint and substitution of his name in place of Dr. Sarda Prasad Bhagat, the present suit was instituted by the two daughters of Dr. Sarda Prasad. Mt. Muni Devi, who had asked for substitution of her alleged adopted son Suresh has now supported Umesh’s adoption to Sarda Prasad. Plaintiff’s own documents Exts. 8 and 8-a go very much against their own case. Ext. 8-b did not dispute Umesh’s adoption. Ext. 20 also stated Umesh’s claim. The trial Court criticised Ext. 8-a because it mentioned about the adoption in the Dattaka form, but Ext. K-i dated the 23rd of January, 1959, was the certified copy of an application by Umesh in which he asked for correction of the word “Dattaka” to “Kritrim”. Not much can be made of the original mistake. To crown all, Exts. J and I proved on the defendants’ side, afford a great support to the story of adoption.
In evidence, it was disclosed consistently that after Umesh passed the Matriculation examination, Dr. Sarda Prasad wanted to admit him to C. M. College at Darbhanga but as that could not materialise, Umesh entered into the College at Madhubani where Sarda Prasad’s son-in-law Dr. Hanuman Bhagat was the health officer. Ext. J is printed form for admission into C. M. College, Darbhanga which was filled up. Defendant’s case is that the declaration appended to that form was signed by Dr. Sarda Prasad on the 20th of November, 1957. In that form, Umesh was described as the son of Dr. Sarda Prasad Bhagat and the declaration was also to the same effect. During the trial, the plaintiffs disputed the signature of Dr. Sarda Prasad, but the learned Subordinate Judge held that it was his and the signature was genuine. No attempt was made before us to discredit this finding. The only comment against this important document by the trial Judge was that Dr. Sarda Prasad might have signed the declaration in Ext. J before the alternative given in that form, namely, son of ward, were properly scored through. He suspected that after Saida Prasad’s signature was obtained, the alternative was penned through to leave the description of Umesh as son of Sarda Prasad. This fraud, according to the trial Court, was in continuation of the fraud which began in the Darbhanga Municipal primary school in 1947. There is no warrant for such inference.
Another criticism levelled against the document during argument was that this application form was not filed in the office of the C. M. College, and, as deposed by Umesh and Jaikishun, the form after being filled up was left with the first wife of Dr. Sarda Prasad, Mt. Laxmi Devi, defendant No. I, till it was brought to be filed in Court in this case. It was argued, why should this form be kept so carefully when that was not utilized. Dr. Sarda Prasad died on the 19th of December, 1957. If the signature (Ext. I) appearing on Ext. J is genuine, as it has been held by the trial Court, there cannot be any suspicion that this signature could have been introduced subsequent to December, 1957. The suit was instituted in April 1958. That application form (Ext. J) was filled and was in existence before the 19th of December, 1957, cannot be in doubt. The story of that paper being left with defendant No. 1 is not improbable, particularly in absence of any denial of that fact by defendant No. r in her evidence in Court. This document clearly amounts to a written admission o’ adoption by Dr. Sarda Prasad in November, 1957 and the plaintiffs, claiming under him, will be bound by that admission. Besides, there is no reason why Dr. Sarda Prasad would make knowingly and willingly false assertion that he was the father of Umesh in that application and declaration. In my view, this document goes to establish, in a more dependable form, the story of adoption.
17. Ext. J-1 is the matriculation certificate of Umesh Prasad Bhagat granted by the Bihar School Examination Board in which he was described as son of Sarda Prasad Bhagat, born on January 2, 1940. There is not much importance of this document inasmuch as it follows the description given in the school admission register. But there is a different aspect, in regard to this document, which cannot be overlooked. A matriculation certificate obtained by a boy of the family is an event which usually deserves notice of the senior members in that family, particularly the men folk. The description of Umesh as son of Sarda Prasad could not have escaped knowledge of Dr. Sarda Prasad, and if that description was not true, he would not have tolerated that, and the fraud, if any, in that respect, would have been exposed. The certificate is dated the 1st December, 1957, and Sarda Prasad was alive till the 19th December, of that year. The printed form for admission into college (Ext. J) was signed by him on the 20th of November, 1957. The argument that the College form had to follow the description given in the matriculation certificate is without substance as the former was earlier than the latter. On a consideration of the different exhibits, I have no doubt left in my mind that Umesh, defendant No. 4, was treated and correctly described as the son of Dr. Sarda Prasad.
18. The next question is whether the adoption in Kritrim form really took place. As I have stated already, no particular ceremony is necessary for a valid adoption in that form. The consent of the adoptee or his parents would complete the event. For this consent no particular Bet of words or pledge is prescribed. Umesh was 5 or 7 years old at the time of his adoption.
(His Lordship considered the oral evidence and continued as under:-) On a consideration of the oral evidence given on both sides, I am definitely of the view that the defendants’ case is acceptable. The assessment of oral statements’ made of the witnesses by the trial Judge is entitled to careful consideration; but when that assessment is mostly dependent upon an incorrect view taken of the documentary evidence on the record, it loses much of its value.
19. Learned Counsel for the respondents stressed upon the improbability of the alleged adoption. He contended that when Dr. Sarda Prasad married for the second time with a view to getting a son, he would not have adopted Umesh without waiting for a reasonable period. He was not old enough in 1945 to lose any hope of begetting a son. Mt. Muni Devi was also young enough. But the evidence disclosed that Sarda Prasad waited for 7 years after his second marriage and when he did not get a child through his second wife, he took defendant No. 4 in adoption. Having not been able to get a son through either of his two wives, he could well have thought of taking one of the sons of his brother in adoption. I do not see any improbability in that.
20. One more comment from the respondents’ side was that the expenses that would have been incurred in connection with the ad option would have found place in the account-book of Dr. Sarda Prasad, if in fact the adoption was made. The non-production of such account-books would raise an inference against the defendants. Our attention was drawn to the evidence of D. W. 12 who worked as a compounder of Dr. Sarda Prasad. He produced 9 diaries left by Sarda Prasad marked as Exts. K to K-8. They are not account-books in which all accounts of expenses, domestic or otherwise, were entered. It was not taken from any of the witnesses from the defendants’ side that any account-book was kept in regular course by Dr. Sarda Prasad. In such circumstances, the non-production of an imaginary book of accounts cannot be pressed against the appellant.
21. Learned Counsel also referred to the evidence of Jaikishun Prasad defendant No. 3, where he said that there was a “Chitha” in connection with the expenses of about Rs. 3,000/- over the Sradh ceremony after the death of Sarda Prasad. Production of that “Chitha” would not have proved in any way the expenses, if any, incurred wt the time of adoption.
22. On a consideration of all the evidence brought on record and probability of the case, I am of the view that defendant No. 4 was adopted by Dr. Sarda Prasad in Kritrim form and is entitled to a share in the properties left by him. The finding of the trial Court against defendant No. 4 cannot, therefore, be maintained.
23. A cross-objection was filed by the plaintiffs against the finding of the lower Court that the property covered by Ext. 17, a deed of sale in favour of Umesh (defendant No. 4) was his exclusive property. In evidence D. W. 15 (defendant No. 3) stated that the income from Zamindari and cultivation used to be more than the expenses of the family. His father’ left more than Rs. 1000/- in Bank and Rs. 7,000/- in the iron-safe at home at his death. There was also money-lending business in the family. Rs. 40,000/-was spent over the construction of a house, besides Rs. 8000/- spent on the purchase of a car in 1947. All these things go to show that the family had sufficient nucleus out of which a property worth Rs. 1000/- could have been easily purchased. Defendant No. 3 did not assert that the consideration for Ext. 17 came from some other source. When the document was taken in the name of Umesh, he had no means to pay for the land. In absence of any other evidence the trial Court was not justified in holding that the property covered by Ext. 17 belonged exclusively to Umesh. The trial Judge was incorrect in his view that the plaintiffs were to pay any Court-fee over the valuation of that property for the mere reason that it stood in the name of a member of the family. I cannot make out how the trial Court took the view that there was not sufficient nucleus in the family out of which the property covered by Ext. 17 could not have been purchased. For these reasons, I would hold that this property was not exclusive property of Umesh.
24. The result is that the appeal is allowed, the finding of the Trial Court that defendant No. 4 was not the adopted son of Sarda -Prasad is set aside and the cross-objection is also allowed.
25. Suit properties except that covered by Ext. A-2, will be divided in which plaintiffs will get 1/12, defendants 1 and 2 1/12, defendant No. 4 1/3 and defendants 3 to 9 1/2 share. The property under Ext. A-2 which has been held by the trial Court to be the self-acquired property of Dr. Sarda Prasad Bhagat, will be divided giving the plaintiffs 1/6 share, defendants 1 and 2 1/6 share and defendant No. 4 2/3 share. Defendant No. 3 and his branch will not be entitled to any share in that property as the finding of the trial Court in this respect was not challenged if this appeal. The decree passed by the trial Court is accordingly modified. In view of the circumstances of the case and the relation of the parties, they are directed to bear their own costs throughout.
Tarkeshwar Nath, J.
26. I agree.