RAJAGOPALA REDDI Vs. NATHU GOVINDA REDDI

JUDGEMENT

(1.) This is a suit by a reversioner to the estate of one Ramaswami Reddi (deceased) for a declaration that an alleged adoption by Ramaswamy's widow (the 2nd defendant) of the 1st defendant is invalid. In his plaint the plaintiff alleges that Ramaswami died leaving him surviving his mother, the 3 defendant (a widow), his widow (the 2nd defendant), and no issue male or female. He further alleges that the 3 defendant is the nearest reversioner to the estate of the deceased Ramaswami, and that he (the plaintiff) is next in grade to her. These allegations are not denied in the written statements of the 1 and 2nd defendants. The 1 defendant admits that the plaintiff is a dayadi of the deceased Ramaswami. The 3rd defendant does not defend the suit.

(2.) The first question for consideration is whether the District judge was right in holding that the onus of establishing the adoption is on the defence. It is common ground that the plaintiff is entitled to sue for a declaration and that he is not entitled to immediate possession.

(3.) The learned vakil for defendants No. 1 and 2 relied on Asharfi Kunwar v Rup chand (1908) I.L.R. 30 A. 197 where it was held that where the plaintiff asks for a declaration that an alleged adoption is invalid, but cannot claim immediate possession by reason of the intervention of a widow's estate, the burden is on him to make out a prima facie case that the adoption is invalid. The learned judges in that case were of opinion that the question was concluded by authority. In Brojo Kishore Doss Dassee V/s. Srinath Bose (1868) 9 W.R.C.R. 463 there are some general observations by Sir Barnes Peacock which support the view taken by the Allahabad High Court. The learned judge observed. "The plaintiff asks in this regular suit to have it declared that Radhanath's adoption is invalid. It appears to us that the onus rested upon him, as it does upon any one who asks for a decree declaring the illegitimacy of another person, to prove the illegitimacy. The person who asks a court to declare that a thing is invalid is bound to prove that it is so. The Act which enables the court to make a declaratory decree does not enable the court to call upon a man to prove his title at the instance of one who asks to have a declaratory decree that he is not entitled." In this case of Brojo Kishore Dassee v. Srinath Bose (1868) 9 W.R.C.R. 463 not only was there no admission of the plaintiff's reversionary interest, but the court held, that if the adoption were set aside, other parties were the presumptive heirs. In Hur Dial Nag V/s. Roy Krishto Bhoomick (1875) 24 W.R. 107 the judges do not appear to have drawn the distinction referred to in Asharfi Kunwar V/s. Rup Chand (1908) I.L.R. 30 A. 197. The suit was for possession of property on the ground that an alleged adoption was invalid and it was held that it was too late to contend that the burden of proof of the adoption did not lie on the defendant. In Tarinicharan Chowdhry V/s. Saroda Sundari Dasi (1869) 3 B.L.R. 145 the learned judges, referring to Brojo Kishore Dassee V/s. Sreenath Bose (1868) 9 W.R.C.R. 463 observe that in that case the plaintiff asked for a declaration during the lifetime of the widow, that an adoption made by her was invalid, and the rule laid down by the court was, that when a plaintiff sues for a declaration that an adoption is invalid, he is bound to prove the invalidity, because in such a case he does not ask for possession. But, so far as we can see the learned judges in Brojo Kishore Dassee V/s. Srinath Bose (1868) 9 W.R.C.R. 463 do not distinguish, at any rate in so many words, between a case where a plaintiff only asks for a declaration and where he asks for possession. And the learned judges in Tarini Charan Chowdhry V/s. Sarodha Sundari Dassi (1869) 3 B.L.R. 145 merely point out that the case of Brojo Kishore Dassi V/s. Sreenath Bose (1868) 9 W.R.C.R. 463 was distinguishable from the case before the Calcutta court. In AMIR ALI & WOODROFFE S Law of Evidence, 4th edn., p. 549, the learned authors, without any discussion of the question, say that if plaintiff sues as reversionary heir during the lifetime of the widow for a declaration that an adoption is invalid, the onus is on him to prove the invalidity, and they cite Brojo Kishore Dassi v. Sreenath Bose (1868) 9 W.R.C.R. 463 and the case on which we have commented. (The reference in the Footnote to 8 W.R. is a printer's error).