AMRUTA Vs. KONDABAI

JUDGEMENT

(1.) THE two questions that have been argued by the learned Counsel for the parties in this Second Appeal are :-

(2.) FOR far too long, the Hindus were under the hypnotic spell of the belief that marriage and sonship ensure great religious benefit. If this was true, then Brahmacharya and Sanyas could not be regarded to be highest religious Orders in Hindu religion. This was a myth fostered and nurtured to persuade people to lead a normal married life and to have children as our entire society has germinated around these two institutions of marriage and sonship. The tendency of our Courts have, therefore, been to approach the questions relating to marriage and sonship Ut res magis valeat quam pereat so that both marriage and sonship may flourish and not perish. As early as in 1869, the Privy Council declared in Inderun v. Ramaswamy, 13 MIA 141 at 158 that once you get that there was a marriage in fact, there would be a presumption in favour of there being a marriage in law. Courts used to have drawn extremely strong presumption in favour of legitimacy of children even before Section 112 of the Evidence Act enacted in 1872 providing to the effect that a child born to a woman shall be conclusively presumed to be the legitimate child of herself and her husband, unless non access between the parties at the relevant time stares at the face. As to sonship by adoption, a Division Bench of the Calcutta High Court ruled in 1891 in Surendra Nandan v. Sailaja Kant, ILR 18 Calcutta 385, that a Court, far from being too astute to defeat an adoption, should rather do its utmost to support it and this view appears to have been approved by the Privy Council in 1906 in K. Suryanarayana, 33 IA 145. Even in 1933 in Amarendra Mansingh, 60 IA 242 at 249, accepted by a seven-Judge Bench of the Supreme Court in Gurunath, AIR 1955 SC 206, as a leading decision on the point, the Privy Council, after referring to the doctrine as to religious efficacy of adoption, advised us to support an adoption, if we can and to defeat it only when we cannot.

(3.) BUT in the case at hand, both the trial Court and the first appellate Court have come to a concurrent finding that the factum of adoption has not been satisfactorily proved and the Deed of Adoption purports to record a sham transaction. Even assuming arguendo that the finding is wrong, or even grossly erroneous, a second appellate Court must fold its hands even under the provisions of Section 100 of the Code of Civil Procedure, as it stood prior to its amendment in 1976, unless, as pointed out by the Supreme Court in Mattulal v. Radhelal, AIR 1974 SC 1596 at 1601, the finding is such as could not be arrived at by any Court on the materials on record. The judgments of the Courts below clearly demonstrate anxious advertence to all the materials on record and the concurrent finding arrived at by them as to the factum of adoption not having been proved is not such a one which cannot be arrived at in any view of the matter. This finding, therefore, is unassailable in Second Appeal even under Section 100 of the Code of Civil Procedure, as it stood before 1976, and what was then a restricted area for the second appellate Court has now become almost a prohibited area or no-entry area under Section 100 as amended in 1976.