BISWANATH AGARWALLA Vs. DHAPU DEBI JAJODIA

JUDGEMENT

(1.) THIS is a plaintiffs appeal from a decree dismissing his suit for a declaration that he was the adopted son of one Rampratap Udhani alias Rampratap Agarwalla who died in the year 1940 and for possession of the estate of the said deceased. The plaintiff further claimed that an immovable property in Calcutta namely premises Nos. 1 and 2 Jagabandhu Boral Lane had been purchased by the said deceased in the benami of his wife Munia and that a deed of trust executed by the said Munia in respect of the said property was void. The learned trial Judge held against the plaintiff both on the question of adoption and on the question of benami purchase. The plaintiff has not pressed the appeal on the question of benami or the validity of the deed of trust and has limited the appeal to the sole question of adoption.

(2.) RAMPRATAP Udhani came to Calcutta from the village of Ghatoa in Rajasthan many years ago. He started a sweetmeat shop at premises No. 16, Mallick Lane, at first renting a room in the said premises. His business seems to have prospered to such an extent that he was able to purchase the said property some years afterwards. He died in the year 1940 leaving behind him his third wife Munia, a daughter Ganpati born in 1906 by a predeceased wife, two daughters by the name Rukmani born in the year 1916 and Dhapu Devi born in the year 1921 and a son Ghasirarn born in the year 1929. There is some discrepancy in, the evidence as to whether Rampratap had married thrice or whether he had married four times but that is hardly material. It is undisputed that Munia was his last wife whom he had married in 1914. A number of children, mostly daughters, were born to Munia. Apart from Ghasirarn there was only one son born to Rampratap by Munia in the year 1919 by 'the name of Jethmull who died in the year 1921. Ghasirarn was born in the year 1929 and died in the year 1943. Rukmani was married to one Chiranjilal and had three sons born to her namely Biswanath the plaintiff in 1937, a second son by the name of Hem born in 1944 and a third by the name of Rajendraborn in December 1949 only a fortnight before Rukmani's death. The adoption of Biswanath is alleged to have taken place at Ghatoa on September 25, 1950 corresponding to Bhadta Sudi 14 Sambat Year 2007 (Ananta Chaturdashi day). The ceremony of adoption is alleged to have been followed by the execution of a deed by Munia immediately afterwards which is said to have been registered at a place called Nawa at a distance of about 20 miles from Ghatoa on October 26, 1950. The original deed is not forthcoming but a certified copy of it was adduced in evidence. As the adoption is by a widow the plaintiff had to allege and substantiate that she had authority to adopt given to her by her 'husband. The plaintiff further alleged that there was a custom prevalent amongst the Agarwalla community to which the parties belonged whereby a daughter's son could be validly given and taken in adoption. The suit had been filed against Dhapu Devi Jajodia and her husband Chadanmull but later on Ganpati the daughter by a predeceased wife of Rampratap was also added as a defendant. Munia died on March 5, 1956 and the suit was filed on May 17, 1956. Dhapu Devi and Chandanmull filed their written statements in June 1956 while Ganpati's written statement was filed in April 1957. The defendants denied not only the factum of adoption but also the authority to adopt and the existence of the custom relied on. No mention having been made of the execution of the alleged deed of adoption 'in the plaint nothing was said about this document in any of the written statements.

(3.) THE learned trial Judge records a definite finding that Munia had no authority from her husband to adopt the son unto him. He found himself unable to hold that the ceremony of adoption namely the giving and taking of the boy had been performed but he took the view that the deed had been executed by Munia. On the question of custom the learned Judge found that the plaintiff had not been able to prove any community custom but was of the view that it a family custom had been pleaded he might have felt inclined to uphold it. In the result, he found that the plaintiffs case of adoption had not been proved and dismissed the suit. 4a. In order to appreciate the evidence adduced by the parties in this case it is necessary to take note of the pedigree table which was marked Ex. 'A' (see p. 16) in the trial Court. As most of the witnesses on the question of adoption are agnates of Rampratap the pedigree table may be set out as appearing at pages 36(a) to 36(d) of Part II of the paper book. <FRM>JUDGEMENT_52_AIR(CAL)_19641.htm</FRM>