BANWARI LAL Vs. TIRLOK CHAND

JUDGEMENT

(1.) KOSHAL, J.: ( The facts giving rise to these two cross appeals by special leave may, with advantage, be stated with reference to the following pedigreetable:- <IMG>JUDGEMENT_349_1_1980Image1.jpg</IMG>

(2.) BOTH the contesting parties feel aggrieved by the judgment of the High Court. While defendant No. 1 claims in Civil Appeal No. 1742 of 1969 the entire property covered by schedules A, B and C, the plaintiff has filed a cross appeal (Civil Appeal No. 1743 of 1969) seeking to defeat in toto the claim of defendant No. 1.

(3.) ON behalf of defendant No. 1 the only submission made was that the two wills must be given effect to not only with regard to the properties received by Smt. Chhoti from Govind Ram but also in respect of those which developed on her as a successor to her husband Jagannath. This submission is also without substances. Jagannath died in 1940 when Smt. Chhoti came into his property on the usual life-tenure without any right of alienation (except for necessity) or of devise. To the extent that she overstepped her rights in devising Jagannath's property the will transgressed the law and has been rightly held to be inoperative, the result being that her reversioners and not her devisee would succeed to Jaganath's share in the properties, covered by schedules A and B. The situation would certainly have been different if the adoption had been proved; for, in that case, defendant No. 1 would have succeeded as the sole reversioner to the estate left by Smt. Chhoti, being her husband's brother's son and therefore his nearest and sole heir. and that is why a contention was raised on behalf of a defendant No. 1 that a valid adoption had been proved and that the finding to the contrary arrived at by two of the courts below was unsupportable. Reference in this connection was made to the recital in the will executed by Govind Ram about defendant No. 1 being the adopted son of the devisor and to the oral evidence of Raj Pal, P.W. 2 who attested that will and deposed that defendant No. 1 had been adopted by the testator. These two pieces of evidence were considered by the trial Court as well as the High Court, both of whom regarded the material as insufficient to hold that a valid adoption was proved. The finding in relation to the adoption is a finding of fact which we see no reason to interfere with in the circumstances of the case. The adoption is alleged to have taken place within about a decade immediately preceding the suit between the parties so that evidence of witness who were present at the actual adoption and had seen the 'giving and taking' would normally have been available. however, no attempt was made to produce any such witness not to explain why no such witness was forthcoming. Different considerations may have prevailed if proof of adoption was required to be submitted to court after a very long period of its having taken place, which is not the case here. The statement made by the testator in the will about the adoption is certainly a piece of admissible evidence as observed in Chandreshwar Prasad Narain Singh v. Bisheshwar Pratab Narain Singh, AIR 1927 Pat 61 cited by learned counsel for defendant No. 1 but there is no rule of law or prudence laying down the principle that such a statement must be regarded as conclusive, and this was also the view taken in that case. And the burden of proof of adoption was heavy on the defendant. In this connection we may refer to the following passage in Article 512 of Mulla's Hindu Law (14th edition):