GANPATI CHINTAMANI Vs. DAMODAR BHIKU BHUTT

JUDGEMENT

(1.) THIS is a first appeal from the judgment and decree of the Civil Judge First Class, Lashkar, by which the Plaintiff's suit for declaration of title to and possession of a house situated in Saste -ki -Goth, Lashkar and left by one Govind Bhutt, has been dismissed.Relationship between the parties may conveniently be described thus: It is undisputed that the two branches of Ram Bhutt and Krishna Bhutt had separated at a time immemorial. It is also undisputed that the branch of Krishna Bhutt remained a joint family. The present suit relates to the properties belonging to the branch of Krishna Bhutt. Contest is between Ganpati Plaintiff and Damodar Bhutt Defendant. The Plaintiff's case is that Govind Bhutt was the sole surviving coparcener of his branch. On his death the suit property devolved on the Plaintiff as his daughter's son but the Defendant took wrongful possession of the house. It is averred in the plaint that Damodar had been adopted by Bhiku Bhutt and had thus gone to Ram Bhutt's branch, which averment is denied by the Defendant who claims the estate as the surviving member of Krishna Bhutt's branch. The only question for decision in this appeal is, as it was before the trial Judge, whether Damodar was adopted by Bhiku Bhutt. It must be remembered that Bhiku died in Vikram Samvat 1960, i. e. in 1903 A. D., which fact is also undisputed. This is, therefore, a case of an old adoption and Shri Karkare contends that the learned trial Judge erred in disregarding the rule that in such a case even a slight evidence is sufficient to prove adoption. Bhiku had a 'muafi' in Sawai Jaipur State. It appears that on his death an application was made in the year 1904 on behalf of Damodar, then a minor, for the grant of a succession certificate. With that application a genealogical chart called 'kursinama' was filed which may be reproduced here:

(2.) IT is expressly mentioned in this pedigree that Damodar had "come by adoption" as son of Bhiku. The Plaintiff produced before the trial Judge a certified copy of the above 'kursinama' and it is marked Exh P -2. It is urged by Shri Shejwalkar that the certified copy ought to have been proved as true and correct and that be has his own doubts whether in the original the words "GOAD GAYAA" and "GOAD AAYAA" are really written. I am quite unable to see why there should be any such apprehension in the mind of the Learned Counsel. Statutory presumption of the correctness of the certified copy Exh P -4 must be drawn under Section 79 of the Evidence Act. It was open to the Defendant either to have proved by summoning the original application that the copy was incorrect or to have shown that the copy was not issued by a competent authority or was issued without complying with the provisions of law governing its issue. Then only the Court was not bound to draw the presumption in regard to its genuineness as laid down by their Lordships in Bhinka v. Charan Singh : A I R 1959 S C 960. The Plaintiff filed before the trial Judge a copy of the order (Exh. P -4) by which a succession certificate was granted to Damodar. The order specifically makes a mention of the above 'kursinama'. It is also said in the order that the evidence of Raghunath son of Govind, Ram Chandra, Vasudeo, Laxmi Narayanji and Sadashivji was that Bhiku died on Baishakh Sudi 14, Samvat 1960 at Lashkar, Gwalior; that Damodar performed obsequies of Bhiku and a 'Pagree' was tied on the head of Damodar; that there was no other heir except Damodar; and that Mahadeo, Vasudeo and Laxmi Narayan gave their consent and declared Damodar to be the heir.

(3.) THE Defendant admitted in his statement that on Bhiku's death he performed the obsequial rites. He made an endeavour to explain it by saying that Govind Bhutt was not competent to perform those ceremonies although Raghunath Bhutt was, but he did not know why Raghunath Bhutt did not perform them. The explanation will require a feat of imagination to disturb the presumption which arises from the ordinary course of human conduct, viz., that Damodar could not have performed the funeral rites if he was not the adopted son of Bhiku, which strongly supports the Plaintiff's case of adoption. From all this, the conclusion is almost irresistible that Damodar had been adopted by Bhiku, and to say the least, any prudent man will, in these circumstances, act on that supposition. The trial Judge has laid stress on the fact that the Plaintiff failed to prove the actual ceremony of giving and taking in adoption. In my judgment, the learned trial Judge has misdirected himself and has not kept in view what may be called the settled position of law. It is true that the onus of proving an adoption is on the party who alleges it. But after a lapse of long years, when the evidence must have naturally disappeared, it is too much to expect direct testimony of witnesses of the ceremony of actual giving and taking. When a person has for nearly half a century enjoyed the status of an adopted son and it , 1952 1 N L J 331 :, I L R 1953 Nag. 69 :, A I R 1952 Nag. 295.is not possible to get witnesses who were actually present at the time and could depose to the performance of the ceremony, it must be presumed that all the necessary ceremonies were duly and regularly performed. (See for instance : A.I.R. 1937 Lah. 626 : A. I. R. 1955 Raj. 65).