RAJA GOPALA REDDY Vs. NATHU GOVINDA REDDY

JUDGEMENT

(1.) This is a suit by a reversioner to the estate of one Ramasamy Reddy (deceased) for a declaration that an alleged adoption by Ramasamy's widow (the 2nd defendant) of the 1st defendant is invalid. In his plaint the plaintiff alleges that Ramasamy 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 Ramasamy, 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 Ramasamy. 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 lay 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 Nos. 1 and 2 relied on Asharfi Kunwar V/s. Rup Chand 30 A. 197 : A.W.N. (1903) 79 : 5 A.L.J. 200; 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 this question was concluded by authority. In Brojo Kishore Dasee V/s. Sreenath Bose 9 W.R. 463 there are some general observations of 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 parson, to prove the illegitimacy. The parson 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 Brojo Kishore Dasee V/s. Sreennth Bone 9 W.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 reversionary heirs. In Hur Dial Nag V/s. Roy Krishto Bhoomick 24 W.R. 107 the Judges do not appear to have drawn the distinction referred to in Asharfi Kunwar v. Rup Chand 30 A. 197 : A.W.N. (1903) 79 : 5 A.L.J. 200. 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 Tarini Charan Chowdhry V/s. Saroda Sundari Dasi 3 B.L.R. 145 : 11 W.R. 468 the learned Judges referring to Brojo Kishore Dasee V/s. Sreenath Bose 9 W.R. 463 observe that in that case the plaintiff asked for a declaration during the life-time 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 Dasee V/s. Sreenath Bose 9 W.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. Saroda Sundari Dassi 3 B.L.R. 145 : 11 W.R. 468 merely point out that the case of Brojo Kishore Dasee V/s. Sreenath Bose 9 W.R. 463 was distinguishable from the case before the Calcutta Court. In Amir Ali and Woodroffe's Law of Evidence, 4 Edition, page 549, the learned authors, without any discussion of the question, say that if a plaintiff sues as reversionary heir during the life-time 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 Dasee V/s. Sreenath Base 9 W.R. 463 and the case on which we have commented. (The reference in the footnote to 8 W.R., is a printer s-error).