KASHI NATH (DEAD) THROUGH LRS.versusJAGANATH

A                    KASHr NA TH (DEAD) THROUGH LRS.
                                    v.
                                JAGANATH

                               NOVEMBER 5, 2003
B
               [DORAISWAMY RAJU AND ARIJIT PASAYAT, JJ.]


          Hindu Law:

C        Adoption of male child-Validity of-On/acts, appellant claiming to be
  an adopted son of the pujari of the temple, thus entitled to manage temple, do
  sevapuja, and to get offerings made to the idols and the other party having
  exclusive right over it-Seeking declaration to the effect·-Courts below
  dismissing the suit holding that appellant not an adopted son on basis of the
  evidence-High Court upholding the order-On appeal, held: Evidence and
D the pleadings are at variance and also directly contradictory and selfdestructive
  of the claim of adoption-Hence order of High Court justified-Old Hindu
  law, Article 3-Hindu Adoption and Maintenance Act, 1955.

          The dispute arose with regard to functioning as a pujari in the temple
    in question. The original appellant claimed to be the adopted son of the
E   pujari of the temple. He filed suit for declaration that he is entitled to
    manage the temple, to do sevapuja and to get offerings made to idol; and
    that the respondent-defendants belonging to the other community have
    no excl~sive right. Respondent contended that the appellant was not the
    adopted son. Courts below rejected the appellant's claim and dismissed
F   the suit on the basis of the evidence on record. High Court held that the
    pleadings were at variance with the evidence and rejected the claim. Hence
    the present appeals.

         Appellant contended that the approach of the High Court is
    unsupportable; that several orders and judgments clearly establish that
G   the appellant was the adopted son of the pujari of the temple; that the
    Courts below erred in ignoring those and attaching undue importance to
    minor variations; that when the documentary evidence was sufficient
    merely because the oral evidence was somewhat not in line with the
    pleadings that should not have weighed with the courts below.

H                                        202
            KASH! NATH (DEAD) THROUGH LRS. v. JAGANATH                   203
      Respondents contended that several essential ingredients have to be       A
established to come to a conclusion about the valid adoption; that the
evidence fell sho~ of that legal requirement; that the evidence and the
pleadings were not only at variance but directly contradictory and self
destructive of the case on the claim of adoption, therefore, the High Court
was justified in dismissing the second appeal.
                                                                                B
      Dismissing the appeals, the Court

       HELD : 1.1. When the evidence is not in line with the pleadings and
is at variance with it and in virtual self contradiction, adverse inference
has to be drawn and the evidence cannot be looked into or relied upon.
Additionally, the conclusion whether there was adoption is essentially one      C
of fact merely depending upon pure appreciation of evidence on record.
                                                                 (209-D-E)

       Siddiqui Mohammad Shah v. Mst. Saran and Ors., AIR (1930) PC 57;
Mis. Trojan and Co. v. RM N.N. Nagappa Chetiar, AIR (1953) SC 235;              D
1/.ajendra Kumar v. Kalyan (dead) by Lrs.. (2000) 8 SCC 99 and Raushan
Devi v. Ramji Sah and Ors.. (2002) 10 SCC 205, referred to.

     1.2. From the judgments of the trial Court, First Appellate Court
and the High Court it is clear that there was no consistency so far as the
claim regarding the adoption is concerned particularly as to who and at         E
what point of time it was made. The High Court has taken great pains to
extract the relevant variations to indicate as to how it cut at the very root
of appellant's claim. Therefore, no exception could be taken to the well-
merited findings concurrently recorded by the courts below with which
the High Court also rightly declined to interfere on the facts and
circumstances of this case. (209-C-D; 209-F)                                    F
     V.T.S. Chandrashekhara Mudaliar v. Kulandaivelu Muda/iar, AIR
(1963) SC 185; Hem Singh and Anr. v. Harnam Singh and Anr.. AIR (1954)
SC 581; Amarendra Mansingh v. Sanatan Singh. AIR (1933) PC 155 and
Kishori Lal v. Chaltibai, AIR (1959) SC 504, referred to.                       G
      Hindu Law by S. V. Gupta, Third Edition p.899-900; Manu Chapter IX.
p.141-142 as translated by Sir W Jones; Mayne 's Hindu Law and Usage 12th
Edn. P.329, referred to.

     CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6974 of 1996.              H
    204                      SUPREME COURT REPORTS (2003) SUPP. 5 S.C.R.

A        From the Judgment and Order dated 10.9.86 of the Rajasthan High
    Court in S.B.C.S. A. No. 94 of 1976.

                                        WITH

            C.A. No. 8596 of 2003.
B
            O.P. Sharma and R.C. Gubrele for the Appellants.

            Aruneshwar Gupta and Amarjit Singh Bedi for the RC$pOlldents.

            The Judgment of the Court was delivered by
c           ARIJIT PASAYAT, J. Leave granted in S.L.P. (C) No. 14360 of
    1998.

            Both the appeals being interlinked are disposed of together.

D         Kashi Nath, the original appellant's claim of being the adopted son of
    Bala Bux and Smt. Nangi having been rejected by the Trial Court (Court of
    sub-Judge, Jaipur City), First Appellate Court (Additional District Judge,
    Jaipur City) and the Rajasthan High Court by the impugned judgment in
    second appeal, the appeal (CA No. 6974 of 1996) has been filed. The other
    appeal is an offshoot of the other. The claim is intricately linked with
E   functioning as a Pujari in the temple of Thakurji Shri Gopalji in the Jaipur
    City. The litigation started several decades back relating to the present
    controversy as to adoption. There have been series of other litigations which
    are intimately linked with that basic issue also. During the pendency of the
    appeals the appellant Kashi Nath had died and his legal heirs were impleaded.

F       Coming to the genesis of the dispute regarding adoption the same
  started when the Kashi Nath the original appellant filed a suit for declaration
  that the temple called Thakurji Sri Gopalji belongs to the entire class of
  Vaishnava Worshippers and the defendants-respondents herein who belonged
  to Khati Community have no exclusive right over it and further plaintiff is
G exclusively entitled to manage the temple, to do sevapuja and to get offerings
  made to idols. The claim was resisted by the defendants on a number of
  grounds, one of which was that the plaintiff was not the adopted son of Bala
  Bux. The Trial Court framed issues and after recording evidence decreed the ·
  plaintiff's suit by judgment dated 30.5.1964. Defendants preferred appeal
  and the learned District Judge, Jaipur City, set aside the judgment of the Trial
H
     KASH! NATH (DEAD) THROUGH LRS. v. JAGANATH [PASAYAT, J.) 205

Court by judgment dated 3.6.1969 dismissing the plaintiffs suit.                    A
      Plaintiff filed an appeal before the High Court which was registered as
SB Civil Second Appeal No. 149/69. The learned Single Judge who heard
the appeal set aside the First Appellant Court's judgment dated 6.3.1969 and
remitted the matter back to the said Court with direction that an amended
issue no.4 was to be framed and the parties were to be granted opportunity          B
to lead evidence on the amended issue. The amended issue reads as follows:

            "Whether there was ceremony of giving and taking at the time of
        alleged adoption of the plaintiff to Bala Bux and whether the plaintiff
        is a legally and validly adopted son of the Bala Bux?"
                                                                                    c
      The First Appellate Court sent the matter to the Trial Court for recording
evidence on the additional issue and also to remit its findings. The Trial
Court recorded the evidence led by the parties and returned the findings on
25.4.75 deciding amended issue no.4 against the plaintiff, and holding that
he was not the adopted son of Bala Bux. The Additional District Judge after         D
hearing the parties confirmed the said findings of the Trial Court and ultimately
accepted the appeal and dismissed the suit of the plaintiff by judgment dated
9.12.75. Thereafter a second appeal was filed before the High Court. During
pendency of the appeal in the High Court, defendant-respondent no.I Narain
died and as his legal representatives were already on record his name was
deleted. ~nother defendant-respondent named Smt. Dekha wife of Kalyan               E
Sahai also died during the pendency of the appeal and her legal representatives
were also on record, therefore, her name was also deleted from array of
respondents.

       Stand of the appellant before the High Court was that the approach of
the Trial Court and the First Appellate Court was erroneous in view of F
several judgments/orders passed in different proceedings. It was clearly
established that the appellant was the adopted son of Bala Bux. The minor
variations highlighted by the Trial Court and the First Appellate Court were
but natural, when one considers the position that the adoption was claimed
to have been taken place in 194 l. Since the evidence was recorded after G
about three decades the Courts' should not have insisted on strict proof and°
slight evidence is sufficient. Stand of the defendants-respondents was that the
question whether one is adopted son of another is essentially a question of
fact and the second appeal was not maintainable. The High Court by the
impugned judgment held that pleadings were at variance with the evidence.
There was no evidence whatsoever to support the plaintiffs case as reflected H
    206                     SUPREME COURT REPORTS (2003] SUPP. 5 S.C.R.

A   in the plaint and on the contrary evidence led by the plaintiff after the matter
    was remitted is completely at variance with the assertions made in the plaint
    and, therefore, have to per se not be relied at all. Accordingly, it was held
    that findings of fact recorded on the basis of evidence were not open to
    challenge in the second appeal.

B         Learned counsel for the appellant submitted that the approach of the
    High Court is unsupportable. There were several orders and judgments which
    clearly establish that Kashi Nath was the adopted son of Bala Bux. The
    Courts below erred in ignoring those and attaching undue importance to
    minor variations. When the documentary evidence was sufficient merely
C   because the oral evidence was somewhat not in line with the pleadings that
    should not have weighed with the courts below.

          Per contra, learned counsel for the respondents submitted that in this
    case adoption is claimed to have been made prior to enactment of Hindu
    Adoption and Maintenance Act, 1955 (for short the 'Act'). Several essential
D   ingredients have to be established to come to a conclusion about the valid
    adoption and, the evidence fell short of that legal requirement. Additionally,
    the evidence and the pleadings were not only at variance but directly
    contradictory and self destructive of the case on the claim of adoption.
    Therefore, the High Court was justified in dismissing the second appeal when
    basic question is whether there was a adoption, which is nothing but a
E   conclusion arrived as of a fact.

          Section 5 provides that adoptions are to be regulated in terms of the
    provisions contained in Chapter II. Section 6 deals with the requisites of a
    valid adoption. Section 11 prohibits adoption; in case it is of a son, where the
F   adoptive father or mother by whom the adoption is made has a Hindu son,
    son's son, or son's son's son, whether by legitimate blood relationship or by
    adoption, living at the time of adoption. Prior to the Act under the old Hindu
    Law, Article 3 provided as follows:

                "Article 3 - (I) A male Hindu, who has attained the age of
G           discretion and is of sound mind, may adopt a son to himself provided
            he has no male issue in existence at the date of the adoption.

                (2) A Hindu who is competent to adopt may authorize either his
            (i) wife or (ii) widow (except in Mithila) to adopt a son to himself."

          Therefore, prior to the enactment of the Act also adoption of a son
H
          KASHI NA TH (DEAD) THROUGH LRS. v. JAGANATH [PASAYAT, J .] 207

       during the lifetime of a male issue was prohibited and the position continues   A
       to be so after the enactment of the Act. Where a son became an outcast or
       renounced Hindu religion, his father became entitled to adopt another. The
       position has not changed after enactment of Caste Disabilities Removal Act
       (XXI of 1850), as the outcast son does not retain the religious capacity to
     . perform the obsequial rites. In case parties are governed by Mitakshara Law,
       additionally adoption can be made if the natural son is a congenital lunatic    B
       or an idiot.

            The origin of custom of adoption is lost in antiquity. The ancient Hindu
     Law recognized twelve kinds of sons of whom five were adopted. The five
     kinds of adopted sons in early times must ·have been of very secondary C
     importance, for, on the whole, they were relegated to an inferior rank in the
     order of sons. Out of the five kinds of adopted sons, only two survive today,
     namely, the Dattaka form prevalent throughout India and the Kritrima form
     confined to Mithila and adjoining districts. The primary object of adoption
     was to gratify the means of the ancestors by annual offerings ik.dt;lh~refore,
     it was considered necessary that the offerer should be as much as possfule a D
     reflection of a real descendant and had to look as much like a real son as
     possible and certainly not be one who would never have been a son. Therefore,
     the body of rules was evolved out of a phrase of Saunaka that he must be
     'the reflection of a son'. The restrictions flowing from this maxim had the
     effect of eliminating most of the forms of adoption. (See Hindu Law by S. V. E
     Gupta, Third Edition at pages 899-900). The whole law of Dattaka adoption
..   is evolved from two important texts and a metaphor. The texts are of Manu
     and Vasistha, and the metaphor that of Saunaka. Manu provided for the
     identity of an adopted son with the family into which he was adopted. (See
     Manu Chapter IX, pages 141-142, as translated by Sir W. Jones). The object
     of an adoption is mixed, being religious and secular. According to Mayne, F
     the recognition of the institution of adoption in early times had been more
     due to secular reasons than to any religious necessity, and the religious
     motive was only secondary; but although the secular motive was dominant,
     the religious motive was undeniable. The religious motive for adoption never
     altogether excluded the secular motive. (See Mayne's Hindu Law and Usage, G
     12th Edition, page 329).

           As held by this Court in V. T.S. Chandrashekhara Mudaliar v.
     Ku/andaivel~ Mudaliar, AIR ( 1963) SC 185, substitution of a son for spiritual
     reasons is the essence of adoption, and consequent devolution of property is
     mere accessory to it; the validity of an adoption has to be judged by spiritual H
    208                     SUPREME COURT REPORTS [2003) SUPP. 5 S.C.R.

A   rather than temporal considerations, and, devolution of property is only of
    secondary importance.

          In Hem Singh and Anr. v. Harnam Singh and Anr., AIR (1954) SC
    581, it was observed by this Court that under the Hindu Law adoption is
    primarily a religious act intended to confer spiritual benefit on the adopter
B   and some of the rituals have, therefore, been held to be mandatory, and
    compliance with them regarded as a condition of the validity of the adoption.
    The first important case on the question of adoption was decided by the Privy
    Council in the case of Amarendra Mansingh v. Sanatan Singh, AIR (1933)
    PC 155. The Privy Council said:
c                "Among the Hindus, a peculiar religious significance has attached
            to the son, through Brahminical influence, although in its origin the
            custom of adoption was perhaps purely secular. The texts of the
            Hindus are themselves instinct with this doctrine of religiou51
            significance. The foundation of the Brahminical doctrine of adoption·
D           is the duty which every Hindu owes to his ancestors to provide for
            the continuance of the line and the solemnization of the necessary
            rites."

          With these observations it decided the question before it, viz., that of
    setting the limits to the exercise of the power of a widow to adopt, having
E   regard to the well established doctrine as to the religious efficacy of son-
    ship. In fact, the .Privy Council in that case regarded the religious motive as
    dominant and the secular motive as only secondary.

           The object is further amplified by certain observations of this Court. It
    has been held that an adoption results in changing the course of succession,
F   depriving wife and daughters of their rights, and transferring the properties
    to comparative strangers or more remote relations. (See Kishori Lal v. Chaltibai
    (AIR 1959 SC 504). Though undeniably in most of the cases motive is
    religious, the secular motive is also dominantly present. We are not concerned
    much with this controversy, and as observed by Mayne it is unsafe to embark
G   upon an enquiry in each case as to whether the motives for a particular
    adoption were religious or secular and an intermediate view is possible that
    while an adoption may be a proper act, inspired in many cases by religious
    motives, Courts are concerned with an adoptio~, only as the exercise of a
    legal right by certain persons. The Privy Council's decision in Amerendra's
    case (supra), has reiterated the well established doctrine as to the religious
H
       KASHI NATH (DEAD) THROUGH LRS. v. JAGANATH [PASAY AT, J.] 209

efficacy of son-ship, as the foundation of adoption. The emphasis has been         A
on the absence of a male issue. An adoption may either be made by a man
himself or by his widow on his behalf with his authority conveyed therefor.
The adoption is to the male and it is obvious that an unmarried woman
cannot adopt, for the purpose of adoption is to ensure spiritual benefit for a
man after his death and to his ancestors by offering of oblations and rice and
libations of water to them periodically. Woman having no spiritual needs to        B
be satisfied, was not allowed to adopt for herself. But in either case it is a
condition precedent for a valid adoption that he should be without any male
issue living at the time of adoption.

        From the judgments of the Trial Court, First Appellate Court and the       C
High Court it is clear that there was no consistency so far as the claim
regarding the adoption is concerned particularly as to who and at what point
of time it was made. The High Court has taken great pains to extract the
relevant variatiOns to indicate as to how it cut at the very root of plaintiff's
claim. As noted by the Privy Council in Siddiqui Mohammad Shah v. Mst.
Saran and Ors., AIR (1930) PC 57, and Mis. Trojan and Co. v. RM N.N.               D
Nagappa Chetiar, AIR (1953) SC 235 when the evidence is not in line with
the pleadings and is at variance with it and as in this case in virtual self
contradiction, adverse inference has to be drawn and the evidence cannot be
looked into or relied upon. Additionally, as rightly submitted the conclusion
whether there was adoption is essentially one of fact merely depending upon        E
pure appreciation of evidence on record. This position has been stated in
several decisions of this Court; e.g., Rajendra Kumar v. Kalyan (dead) by
Lrs., [2000] 8 SCC 99 and Raushan Devi v. Ramji Sah and Ors., [2002] 10
SCC 205. Consequently, no exception could be taken to the well-merited
findings concurrently recorded by the courts below, with which the High
Court also rightly declined to interfere on the facts and circumstances of this    F
case.

      The only result of Civil Appeal No. 6974 of 1996 is dismissal, which
we direct. Consequentially the connected appeal also stands dismissed. Costs
made easy.
                                                                                   G
N.J.                                                       Appeals dismissed.