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Sunday, October 11, 2015

Whether Sitaram Joshi was the legally adopted son of Jagannath Joshi and Moni Debi.? 3) Whether defendant No.1 Rajendra Prasad Shewda was the legally adopted son of Gomati Debi and whether the gift deed executed by Gomati Debi in favour of defendant No.1 was legal and valid? = The letter dated 20.7.1945 (Exb.2) does not lead to any clear/firm conclusion with regard to the adoption of Sitaram and had been rightly discarded by the High Court. In the above conspectus of facts the evidence of the plaintiff regarding the adoption of her husband stands isolated and cannot, on its own, sustain a positive conclusion that her husband Sitaram was adopted by Jagannath. If the suit property was owned by Moni Debi and not by Jagannath and Sitaram was not the adopted son of Moni Debi and Jagannath it must be held that the suit property devolved on Gomati on the death of Moni Debi. The claim of the defendant No.1 to be the adopted son of Gomati could have been challenged only by such legal heirs on whom the property would have devolved following the death of Gomati in the event the adoption of the defendant No. 1 is to be held to be invalid. In this context, the next legal heir who would have been entitled to succeed to the property of Gomati Debi if the adoption of defendant No.1 is to be treated as invalid would not be the original plaintiff inasmuch there was another heir who could have claimed a better title in such a situation, namely, one Chouthamal Sharma, the son of one of the brother’s of Sitaram. No such challenge was made by the aforesaid legal heir who had a better/preferential claim.In view of the above position demonstrated by the evidence on record the High Court was fully justified in not entering into the issue of validity of the adoption of defendant No.1 or the gift deed executed in his favour by Gomati as the said issues had become redundant/inconsequential for the reasons noted above. 22. For all the aforesaid reasons and in the light of what has been found and stated as above, we have to hold that these appeals are without any merit. Accordingly, the order of the High Court is affirmed and the present appeals are dismissed. However, there will be no order as to costs.

                                 REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION
                    CIVIL APPEAL  NOS. 8609-8610 OF 2009


Om Prakash Sharma @ O.P. Joshi                  ...      Appellant (s)

                                   Versus
Rajendra Prasad Shewda & Ors.                      ...    Respondent(s)


                               J U D G M E N T

RANJAN GOGOI, J.

   The suit property comprises of land and building covered by  holding  No.
L-395 on the Thana Lane within the Purulia Municipality,  District  Purulia,
West Bengal.

 The following genealogical table may be set out  for  ready  reference  and
clarity of the facts that will be required to be noticed.





                     Jagannath Joshi  =        Moni Debi
                     (Died October 1953)          (Died August 1963)
                        ____________________________
                            ¦                                              ¦

Brijlal Shewda = Gomati Debi           Sitaram Joshi=Kishori Debi Joshi
                            (Daughter)      (adopted  son-1942)    (Original
plaintiff)
                              (Died    1967)                  (Died    1946)
(Married to Sitaram in 1945)
                                                       (Since deceased)
                 ¦                                       ¦
      Rajendra Pd. Shewda                       Om Prakash Sharma @ Joshi
      (allegedly adopted son)                     (adopted son)
      (Respondent No.1)                            (Petitioner No.1)



According to the original plaintiff, Kishori Debi Joshi,  (since  deceased),
the suit property was purchased by Jagannath Joshi with  his  funds  in  the
name of his wife Moni Debi. Moni Debi, according to the plaintiff,  was  the
name lender though in the Municipal and Land Revenue records   the  name  of
Moni Debi was entered as the owner of the suit property.  The  said  entries
were a mere pretence. The plaintiff further pleaded that she is the wife  of
one Sitaram Joshi who was adopted by Jagannath Joshi and Moni  Debi  in  the
year 1942. After the marriage of Sitaram Joshi and  the  deceased  plaintiff
Kishori Debi Joshi in the year 1945, Sitaram Joshi died a few months  later.
According to the plaintiff, Jagannath Joshi the owner of the  suit  property
died in the year 1953 and on his  death,  one  half  of  the  suit  property
devolved on his wife Moni Debi  and  the  remaining  half  on  the  deceased
plaintiff as the  widow  of  the  predeceased  son.  The  plaintiff  further
pleaded that Moni Debi died in the year 1963  and  on  her  death  her  half
share in the suit property devolved on her  daughter  Gomati  Debi.  On  the
death of Gomati Debi in the  year  1967  her  half  share  in  the  property
devolved  on   the   original/deceased   plaintiff   Kishori   Debi   Joshi.
Accordingly, the plaintiff became the absolute  owner  of  the  entire  suit
property. In this regard, the  plaintiff  further  pleaded  that  respondent
No.1 Rajendra Prasad Shewda who claimed to be  the  adopted  son  of  Gomati
Debi had no basis to make any such claim as no such adoption took place.

4.    The defendant, in the written statement filed, disputed the  claim  of
the plaintiff and asserted that though the suit property was purchased  with
the funds of Jagannath Joshi the said purchase was made for the  benefit  of
Moni Debi in order to provide her with the necessary security in life as  at
that point of time a Hindu widow was  not  entitled  to  full  ownership  of
property owned by a Hindu male  following  his  death.  The  defendant  also
disputed the claim of the original plaintiff  that  Sitaram  Joshi  was  the
adopted son of Jagannath and Moni Debi and in this regard had asserted  that
there was no valid adoption, as claimed. According to the defendant  on  the
death of Moni Debi in August  1963  the  entire  property  devolved  on  her
daughter Gomati Debi  and  upon  the  death  of  Gomati  Debi  the  property
devolved on the defendant No.1 Rajendra Prasad Shewda who  was  the  adopted
son of Gomati Debi. In this regard the defendant had  also  pleaded  that  a
gift deed was executed by Gomati Debi during her life time in favour of  her
adopted son i.e. defendant No.1.

5.    The learned trial court, on the evidence adduced before it,  took  the
view that the property belonged to  Jagannath  and   that  the  adoption  of
Sitaram Joshi, predeceased husband of the original plaintiff, was legal  and
valid. The learned trial  court,  therefore,  held  that  on  the  death  of
Jagannath Joshi in 1953 the suit property devolved in equal  proportions  on
Moni Debi and the original plaintiff who was the widow  of  the  predeceased
son. Thereafter, according to the learned trial court, on the death of  Moni
Debi her half share in the property  devolved  on  Gomati  Debi.  The  trial
court further held that on the death of Gomati Debi in  the  year  1967  her
half share in the property devolved  on  her  adopted  son  defendant  No.1.
Accordingly, the plaintiff as well  as  respondent  No.1  were  held  to  be
entitled to equal shares in the suit property.

6.    The defendant No.1 appealed  against  the  said  order   to  the  High
Court. The original plaintiff filed cross objections  against  the  part  of
the decree which according  to  her  denied  her  full  share  in  the  suit
property. During the pendency of the appeal, the original plaintiff  Kishori
Debi Joshi died and she was  substituted  by  her  adopted  son  Om  Prakash
Sharma who is the appellant before us.

7.    The High Court, on an exhaustive consideration of the  issues  arising
for consideration and the facts and materials on  record,  by  the  impugned
judgment and  order  dated  4.11.2008,  came  to  the  conclusion  that  the
purchase of the property by Jagannath was not a  benami  purchase  and  that
Moni Debi for whose benefit the property was purchased was  the  real  owner
thereof. The High Court further held that the adoption of Sitaram Joshi  was
not proved and therefore on the death of Moni Debi in 1963 the  entire  suit
property had devolved on her daughter Gomati Debi. The High  Court  did  not
consider it necessary to go into the issue of validity of  the  adoption  of
the defendant No.1 Rajendra Prasad Shewda or the legality of the  gift  deed
executed in his favour by Gomati Debi inasmuch as on  the  death  of  Gomati
Debi in the year 1967 the original plaintiff had no subsisting right to  the
property. In this regard it must  be  noticed  that  the  said  finding  was
recorded by the High Court on the basis  that  though  the  husband  of  the
original plaintiff  Sitaram Joshi was  not  the  adopted  son  of  Jagannath
Joshi, the said Sitaram Joshi was the nephew of  Jagannath  (brother’s  son)
and as the wife of the nephew of Jagannath the original  plaintiff  did  not
come within the arena of consideration of being a heir legally  entitled  to
succeed to the property of Moni Debi.   This was  so  found  as  there  were
other legal heirs who had  a  better/preferential  right.   Accordingly  the
appeal filed by the defendant No. 1 was  allowed  and  the  cross-objections
filed by the plaintiff were dismissed.  Aggrieved the present  appeals  have
been filed by the plaintiff.
8.    Three questions, delineated below, arise  for   consideration  in  the
present appeals -
1)   Did the suit property belong to Jagannath Joshi or his wife Moni  Debi?

2)    Whether Sitaram Joshi was the legally adopted son of  Jagannath  Joshi
and Moni Debi.?
3)    Whether defendant No.1 Rajendra Prasad Shewda was the legally  adopted
son of Gomati Debi and whether the gift deed  executed  by  Gomati  Debi  in
favour of defendant No.1 was legal and valid?

9.    We have heard Shri Pranab  Kumar  Mullick,  learned  counsel  for  the
appellant  and  Shri  M.N.  Krishnamani,  learned  senior  counsel  for  the
respondents.

10.   The purchase of property by a husband in the name of  his  wife  is  a
specie of Benami purchase that had been prevalent  in  India  since  ancient
times.  Such a practice appears to have been prevalent  on  account  of  the
position of Hindu women to succession  until  the  enactment  of  the  Hindu
Succession Act and the amendments made thereto from time  to  time.    In  a
situation where a Hindu widow had a limited  right  to  the  estate  of  the
deceased husband under the Hindu Women’s Right to Property  Act,  1937,  the
purchase of immovable property by a husband in  the  name  of  the  wife  in
order to provide the wife with a secured life in the event of the  death  of
the husband was an acknowledged and accepted feature of  Indian  life  which
even finds recognition in the explanation clause to Section 3 of the  Benami
Transactions (Prohibition) Act, 1988. This is  a  fundamental  feature  that
must be kept in  mind  while  determining  the  nature  of  a  sale/purchase
transaction of immoveable property by a husband in  the  name  of  his  wife
along with other facts and circumstances which has to be taken into  account
in determining what essentially is a question of fact, namely,  whether  the
property has been purchased Benami. The “other” relevant circumstances  that
should go into the process of determination of  the  nature  of  transaction
can be found in Jaydayal Poddar (Deceased) through L. Rs. &  Anr.  vs.  Mst.
Bibi Hazra & Ors.[1] which may be usefully extracted below :-
“6.   It is well settled that the burden of proving that a  particular  sale
is benami and the apparent purchaser is not the real owner, always rests  on
the person asserting it to be so. This burden has to be strictly  discharged
by adducing legal evidence  of  a  definite  character  which  would  either
directly prove the fact of benami or establish circumstances unerringly  and
reasonably raising an inference of that fact. The essence  of  a  benami  is
the intention of the party or  parties  concerned;  and  not  unoften,  such
intention is shrouded in  a  thick  veil  which  cannot  be  easily  pierced
through. But such difficulties do  not  relieve  the  person  asserting  the
transaction to be benami of any part of the serious onus that rests on  him;
nor justify the acceptance of mere conjectures or surmises, as a  substitute
for proof. The reason is that a deed  is  a  solemn  document  prepared  and
executed after considerable deliberation, and the person expressly shown  as
the  purchaser  or  transferee  in  the  deed,  starts  with   the   initial
presumption in his favour that the apparent state of  affairs  is  the  real
state of affairs. Though the question, whether a particular sale  is  benami
or not, is largely one of  fact,  and  for  determining  this  question,  no
absolute formulae or acid test, uniformly applicable in all situations,  can
be laid down; yet in  weighing  the  probabilities  and  for  gathering  the
relevant indicia, the Courts are usually guided by these circumstances:  (1)
the  source  from  which  the  purchase  money  came;  (2)  the  nature  and
possession of the property, after the purchase;  (3)  motive,  if  any,  for
giving the transaction a benami colour; (4) the position of the parties  and
the relationship, it any, between the claimant and  the  alleged  benamidar;
(5) the custody of the title-deeds after the sale and  (6)  the  conduct  of
the parties concerned in dealing with the property after the sale.

 The above indicia are not exhaustive and their  efficacy  varies  according
to the facts of each case. Nevertheless No. 1 viz. the  source,  whence  the
purchase money came, is by far  the  most  important  test  for  determining
whether the sale standing in the name of one person, is in reality  for  the
benefit of another” (Emphasis is ours)

11.   The reiteration of the aforesaid principles has been made in  Binapani
Paul vs. Pratima Ghosh & Ors.[2]. The relevant part of the  views  expressed
(Paras 26 and 27) may be profitably recollected at this stage.
“26. The learned counsel for both the parties have relied on a  decision  of
this Court in Thakur Bhim Singh v. Thakur Kan  Singh  wherein  it  has  been
held that the true character of a transaction is governed by  the  intention
of the person who contributed the purchase money  and  the  question  as  to
what his intention was, has to be decided by:

(a) surrounding circumstances,
(b) relationship of the parties,
(c) motives governing their action in bringing about the transaction, and
(d) their subsequent conduct.

27. All the four factors stated may have to be considered cumulatively.  The
relationship between the parties was husband and  wife.  Primary  motive  of
the transaction was security for the wife and seven minor daughters as  they
were not protected by  the  law  as  then  prevailing.  The  legal  position
obtaining at the relevant time may be considered to  be  a  relevant  factor
for proving peculiar circumstances existing and the  conduct  of  Dr.  Ghosh
which  is  demonstrated  by  his  having  signed  the  registered  power  of
attorney.”


12.   Applying the aforesaid principles to the facts of the present case  we
find  that  the  High  Court  was  perfectly  justified  in  coming  to  the
conclusion that the property though purchased from the  funds  of  Jagannath
was really for the benefit of his widow Moni Debi and  therefore  Moni  Debi
was the real owner of the property. In this regard the entries of  the  name
of Moni Debi in Municipal and  Land  Revenue  records;  the  fact  that  the
brothers of Jagannath were no longer alive (according to the  plaintiff  the
property was purchased by Jagannath in the name of his wife to  protect  the
same from his brothers) are relevant facts  that  have  been  rightly  taken
into account by the High Court. The fact that the property  was  managed  by
Jagannath which fact accords with the practice prevailing in a Hindu  family
where the husband normally looks after  and  manages  the  property  of  the
wife, is another relevant circumstance that was taken note of  by  the  High
Court to come to the conclusion that all  the  said  established  facts  are
wholly consistent with the ownership of the property by Moni Debi.  In  fact
the aforesaid view taken by the High Court finds adequate support  from  the
views expressed by this Court in Kanakarathanammal vs. S.Loganatha  Mudaliar
& Anr.[3] the relevant part of which is extracted below :
“It is true that the actual management of  the  property  was  done  by  the
appellant's father; but that would inevitably be so  having  regard  to  the
fact that in ordinary Hindu families, the property belonging exclusively  to
a female member would also  be  normally  managed  by  the  Manager  of  the
family; so that the fact that appellant's mother did not  take  actual  part
in  the  management  of  the  property  would  not  materially  affect   the
appellant's case that the property belonged to  her  mother.  The  rent  was
paid by the tenants and  accepted  by  the  appellant's  father;  but  that,
again, would be consistent with what ordinarily happens in such  matters  in
an undivided Hindu family. If the property  belongs  to  the  wife  and  the
husband manages the property on her behalf, it  would  be  idle  to  contend
that the management by the husband of the properties  is  inconsistent  with
the title of his wife to the said properties. What we have  said  about  the
management of  the  properties  would  be  equally  true  about  the  actual
possession of the properties, because even if the wife was the owner of  the
properties, possession  may  continue  with  the  husband  as  a  matter  of
convenience. We  are  satisfied  that  the  High  Court  did  not  correctly
appreciate the effect of the several  admissions  made  by  the  appellant's
father in respect of the title of his wife  to  the  property  in  question.
Therefore, we hold that the property had been purchased by  the  appellant's
mother in her own name though the consideration which was paid  by  her  for
the  said  transaction  had  been  received  by  her  from   her   husband.”
(Underlining is ours)


13.   On the basis of the above, we have no  reason  to  disagree  with  the
conclusion of the High Court that  the  property  was  owned  by  Moni  Debi
although consideration money for the same may have been  made  available  by
her husband, Jagannath.

14.   The next question to  be  decided  is  the  legality/validity  of  the
adoption of Sitaram, the husband of the original plaintiff,  as  claimed  by
the plaintiff in the suit. This Court,  almost  over  5  decades  back,  had
sounded a note of caution to be followed by courts while  deciding  a  claim
of adoption in the following terms :
“As an adoption results in changing  the  course  of  succession,  depriving
wives  and  daughters  of  their  rights  and  transferring  properties   to
comparative strangers or more remote relations  it  is  necessary  that  the
evidence to support it should be such that it is free from all suspicion  of
fraud and so consistent and probable as to leave no  occasion  for  doubting
its truth.”[4]

15.   Reiterating the above view in Rahasa Pandiani by L.  Rs.  &  Ors.  vs.
Gokulananda Panda & Ors.[5], this Court went on to  further  dilate  on  the
matter in the following terms :

“When the plaintiff relies on oral evidence in support of the claim that  he
was adopted by the adoptive father in accordance with the Hindu  rites,  and
it is not supported by any registered document to  establish  that  such  an
adoption had really and as a matter of fact taken place, the  court  has  to
act with a great deal of caution and circumspection.  Be  it  realized  that
setting up a spurious adoption  is  not  less  frequent  than  concocting  a
spurious will, and equally, if not more difficult to unmask. And  the  court
has to be extremely alert and vigilant to guard against  being  ensnared  by
schemers who indulge  in  unscrupulous  practices  out  of  their  lust  for
property. If there are any suspicious circumstances, just as the  propounder
of the will is obliged to dispel the cloud of suspicion, the  burden  is  on
one who claims to have been adopted to dispel  the  same  beyond  reasonable
doubt. In the case of an adoption which is not  supported  by  a  registered
document or any  other  evidence  of  a  clinching  nature  if  there  exist
suspicious circumstances, the same must be explained to the satisfaction  of
the conscience of the court by the party contending that there was  such  an
adoption. Such is the position as an adoption would divert  the  normal  and
natural course of succession. Experience of life shows that  just  as  there
have been spurious claims  about  execution  of  a  will,  there  have  been
spurious claims about  adoption  having  taken  place.  And  the  court  has
therefore to be aware of  the  risk  involved  in  upholding  the  claim  of
adoption if there are circumstances which arouse the suspicion of the  court
and the  conscience  of  the  court  is  not  satisfied  that  the  evidence
preferred to support such an adoption is beyond reproach.”

16.   It is keeping in mind the  above  principles  that  we  will  have  to
proceed in the present matter.

17.   The plaintiff herself alongwith one  Rukmini  Joshi  (PW  2)  are  the
witnesses who have testified in support of the claim of adoption of  Sitaram
by Jagannath. The testimony of the aforesaid two witnesses are sought to  be
corroborated by the statements of three other persons (since  deceased)  who
had deposed on the subject in another suit being R.S. No.206/1967  filed  by
defendant No.1 against one of the tenants in occupation of  a  part  of  the
suit property. The aforesaid three  witnesses  i.e.  Neth  Ram  Khedia,  Sib
Prasad Rajgoria and Sadayee Devi have deposed in  the  aforesaid  suit  that
Sitaram had been adopted by Jagannath.



18.   Besides the above evidence there is a letter dated  20.7.1945  written
on the letterhead of M/s.  Bisandayal  Ramjiwan  (Exb.2)  by  one  Jagannath
Sitaram. It is urged on behalf of the plaintiff that the  said  letter  sent
from Purulia shows that Sitaram was the adopted  son  of  Jagannath  as  the
sender of the letter has been described as Jagannath Sitaram.


19.   A consideration of the evidence of  PW-2  Rukmini  Joshi  as  a  whole
leaves us  satisfied  that  in  view  of  certain  inherent  inconsistencies
therein the testimony of the said  witness  is  not  worthy  of  acceptance.
Specifically, PW-2 though had stated  that  the  adoption  of  Sitaram  took
place 40 years back she  could  not  recollect  her  own  age;  she  had  no
recollection of number of years prior to the adoption when she  got  married
and was unable to recall when her sons got  married  and  most  surprisingly
the age of her elder son at the time of his marriage;  the  present  age  of
the elder son or even the present calendar year. The evidence of  the  three
witnesses examined in R.S. No. 206/1967 (Ext. 17,  17A  and  17C)  would  be
inadmissible under Section 32(5) & (6) of the Evidence Act  inasmuch  as  on
the date when the said evidence was recorded the controversy with regard  to
the adoption of Sitaram had already occurred. The  aforesaid  question  i.e.
admissibility of the evidence in question would  stand  concluded  by  views
expressed  by  this  Court  in  Kalindindi  Venkata  Subbaraju  &  Ors.  Vs.
Chintalapati Subbaraju & Ors.[6] wherein in Para 12 (quoted below),  it  has
been clearly laid down that,  “in  order  to  be  admissible  the  statement
relied on must be made ante litem motam by persons who are dead i.e.  before
the commencement of any controversy actual or legal upon  the  same  point.”
In the same backdrop  the  principle  of  ante  litem  motam  as  stated  in
Halsbury’s Laws of England, 3rd Edn. Vol.15 p.308 has also been noticed.

“12. As regards the written statement  of  Surayamma  the  position  of  her
declaration therein is somewhat different. Both  sub-sections  5  and  6  of
Section 32, as aforesaid,  declare  that  in  order  to  be  admissible  the
statement relied on must be made ante litem motam by persons  who  are  dead
i.e. before the commencement of any controversy actual  or  legal  upon  the
same point. The words “before the question  in  issue  was  raised”  do  not
necessarily mean before it was raised in the particular litigation in  which
such a statement is sought to be  adduced  in  evidence.  The  principle  on
which this restriction is based is succinctly stated in Halsbury's  Laws  of
England, 3rd Ed. Vol. 15, p. 308 in these words:
“To obviate bias the declarations are required to have been made ante  litem
motam which means not merely before the commencement  of  legal  proceedings
but before even the existence  of  any  actual  controversy  concerning  the
subject-matter of the declarations”.



20.   The letter dated 20.7.1945 (Exb.2) does not  lead  to  any  clear/firm
conclusion with regard to the adoption  of  Sitaram  and  had  been  rightly
discarded by the High Court. In the above conspectus of facts  the  evidence
of the plaintiff regarding the adoption of her husband stands  isolated  and
cannot, on its own, sustain a positive conclusion that her  husband  Sitaram
was adopted by Jagannath. If the suit property was owned by  Moni  Debi  and
not by Jagannath and Sitaram was not  the  adopted  son  of  Moni  Debi  and
Jagannath it must be held that the suit property devolved on Gomati  on  the
death of Moni Debi. The claim of the defendant No.1 to be  the  adopted  son
of Gomati could have been challenged only by such legal heirs  on  whom  the
property would have devolved following the death of Gomati in the event  the
adoption of the defendant No. 1 is  to  be  held  to  be  invalid.  In  this
context, the next legal heir who would have been entitled to succeed to  the
property of Gomati Debi if the adoption of defendant No.1 is to  be  treated
as invalid would not be the original plaintiff inasmuch  there  was  another
heir who could have claimed a better title in such a situation, namely,  one
Chouthamal Sharma, the son of one of the  brother’s  of  Sitaram.   No  such
challenge   was   made   by   the   aforesaid   legal   heir   who   had   a
better/preferential claim.


21.   In view of the above position demonstrated by the evidence  on  record
the High Court was fully  justified  in  not  entering  into  the  issue  of
validity of the adoption of defendant No.1 or the gift deed executed in  his
favour by Gomati as the said  issues  had  become  redundant/inconsequential
for the reasons noted above.


22.   For all the aforesaid reasons and in the light of what has been  found
and stated as above, we have to hold that  these  appeals  are  without  any
merit. Accordingly, the order of the High Court is affirmed and the  present
appeals are dismissed. However, there will be no order as to costs.

                                            ..……..……......................J.
                                                      (RANJAN GOGOI)


                                             ….……..…….....................J.
                                                    (N.V. RAMANA)
NEW DELHI
OCTOBER 9, 2015.

-----------------------
[1]    AIR 1974 SC 171 para 6
[2]    2007 (6) SCC 100
[3]    AIR 1965 SC 271
[4]    AIR 1959 SC 504 [Kishori Lal Vs. Mst. Chaltibai]
[5]    AIR 1987 SC 962
[6]    AIR 1968 SC 947

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