MOOLCHAND CHHOTELAL Vs. AMRITBAI MANJI KHODA BHAI

JUDGEMENT

(1.) THE dispute in this appeal and the connected cross objection relates to the estate of Manjibhai Khodabhai, who died on 13th February 1966 at Raipur. Manjibhai belonged to Gujarati Mochi community and was domiciled at Raipur. Manjibhai was a self made man. He started shoe business in wholesale and retail and the properties left by him at Raipur were his self acquired properties from business. The suit giving rise to this appeal was instituted by his widow Amritbai (plaintiff No. 1) and mother Manikbai (plaintiff No. 2) against the defendant Mulchand for a declaration that be was not entitled to any interest in the properties left by Manjibhai. Possession, of the properties was also claimed in the suit. Mulchand claimed that he was adopted by Manjibhai on 1st May 1962. He also claimed under a will executed by manjibhai on 7th February 1966. Further, he claimed that the running business with its assets and liabilities was gifted in his favour by Manjibhai during his life time.

(2.) THE learned District Judge, Raipur, who tried the suit, came to the conclusion that the adoption was proved and was valid. On the question of will, the District Judge held that though the will was signed by Manjibhai, he did not execute it under his free will with a disposing and understanding mind and, hence, it was invalid. As regards gift, it was held that it was not proved. During the pendency of the suit, Manikbai (plaintiff No. 2) died and Kanjibhai, brother of Manjibhai, was substituted in her place. On the findings reached by him, the District Judge held that Manjibhai's widow and mother succeeded along with the adopted son to the estate of Manjibhai. As a result, the suit was decreed for joint possession. Aggrieved from the decree of the trial Court, the defendant filed this appeal challenging the findings on the questions of will and gift. The plaintiffs have filed a cross-objection in which they have challenged the factum and validity of adoption. Thus the entire controversy is again open in this appeal.

(3.) THE first question that arises in the case is about the fact of adoption. The case of the defendant on the point of adoption is that the adoption took place at Nagpur in the house of his natural uncle Bhanjibhai (D. W. 16) on 1st May 1962, and that he was given in adoption by his natural mother Manibai (D. W. 4) as his father was then dead. It is further alleged that the defendant was taken in adoption by Manjibhai with the consent of his wife, the first plaintiff, and both were present at the time of adoption ceremony. Bhanjibhai and Manjibhai belonged to the same community. There was friendship between them. It has been admitted by Amritbai (plaintiff No. 1) in her evidence that a few days before 1st May 1962 she with her husband Manjibhai had gone to nagpur and had stayed with Bhanjibhai. According to the plaintiff, this visit was to participate in Shrimant ceremony of the defendant's elder brother's wife. Shrimant ceremony is a ceremony which is performed during the seventh month of first pregnancy. The plaintiff denied in her evidence that there was any adoption ceremony performed at that time. There is, however, ample evidence, both direct and circumstantial, in favour of adoption. Manibai, the natural mother of the defendant, has been examined as D. W. 4 on commission. She has deposed that the deceased Manjibhai and his wife, plaintiff No. 1 had asked her to give her youngest son, i. e. the defendant, in adoption and that she had consented to the same. She has further deposed that the adoption ceremony was performed by a priest and was attended by the members of the community. After the priest performed the Tilak, she bid farewell to her son by saying that till now he was being looked after by her and in future he would be looked after by Manjibhai. On this Manjibhai and his wife said that they would look after the defendant very well. Manibai in her statement has referred to the giving and taking ceremony as Bidai of her son, meaning thereby that from that date he ceased to be her son and became the son of Manjibhai. It is in that context that she has stated to have said at the ceremony that till then the boy was looked after by her and now he would be looked after by Manjibhai. Jayantilal (D. W. 9) is the priest. His evidence is to the effect that the ceremony of adoption was performed by him. At the time of performance of religious rites, the defendant with his natural mother Manibai was sitting on one side and Manjibhai and plaintiff No. 1 were sitting on the other side. After poojan and Tilak, Manibai said that she was giving the defendant in adoption and Manjibhai said that he was taking him in adoption. After, that the defendant moved and sat on the lap of plaintiff No. 1, who gave some presents to the defendant. Similar version of the ceremony is given by Bhanjibhai (D. W. 16), the natural uncle of the defendant. Kundanlal (D. W. 8) is a witness who attended the ceremony. He retired in 1964 as Appellate Assistant commissioner of Inccme-tax. His statement is that he was present at the time when the ceremony of giving and taking was performed. This witness deposes that when the priest asked the defendant's natural mother whether she was giving her son in adoption, she said yes she was giving her son in adoption. Similarly, the priest asked Manjibhai and his wife and they also said that they were taking the defendant in adoption. Thereafter the defendant, who was sitting near her mother, moved and sat between Manjibhai and his wife. Mohanlal (D. W. 18) is another witness who was present on the occasion. The witness deposes that after the religious ceremony was performed,the defendant's mother said that she was giving her son in adoption and Manjibhai and his wife, plaintiff No. 1, said that they were taking the defendant in adoption. The evidence of these witnesses has been relied upon by the learned District Judge. We also find the evidence to be reliable. Although the version of the actual giving and taking has been stated by the witnesses with slight variations as to details, there is no doubt about the substance. It is clear that before the ceremony it was decided that the defendant's natural mother would give her son in adoption and Manjibhai would take him in adoption. After this was settled, a ceremony was arranged. In this ceremony, after certain religious rites were performed, the defendant's natural mother said that she was giving the boy in adoption and similarly Manjibhai said that he was taking the boy in adoption. The defendant who was till then sitting beside his natural mother was asked to move and he shifted to the place where his adoptive parents were sitting. He may or may not have actually sat on the lap of his adoptive mother, but that is of no consequence. Some presents were then made to him by his adoptive mother. At the time when the ceremony was performed certain photographs were taken which are Exs. D- l to D-5 and D-l1. These photographs support the oral evidence of the adoption ceremony and the presence of plaintiff No. 1 at that time.