Holding

An appellate court must not overturn a trial court's findings on oral evidence unless a clear error or special feature is evident, and the physical act of giving and taking suffices for a valid adoption in the circumstances of this case.

Summary

Jagannathdas and his wife Premwati, childless, created a trust over their estate. The appellant claimed he had been adopted by them on September 24, 1951, making the trust void and entitling him to a half share. The trial court found the adoption valid based on oral testimony, the adoption deed, and surrounding circumstances, and declared the trust invalid. The High Court reversed this finding, relying heavily on the relationship of witnesses to the parties and demanding elaborate ceremonial proof. The Supreme Court held that an appellate court should not disturb trial court findings on oral evidence unless a special feature was missed or the balance of probability is clearly against the trial court, and that the physical act of giving and taking sufficed for a valid adoption in the relevant community. Consequently, the Supreme Court restored the trial court’s decree, declaring the adoption valid and the trust void.

Issues considered

The validity of the alleged adoption of the appellant by Jagannathdas and Premwati.
Whether the trial court's findings on oral evidence should be upheld by the appellate court.
The necessity of elaborate ceremonial proof (e.g., havan) for a valid adoption under Hindu law.
Whether the trust deed effected a partition requiring notice to co‑sharers.
The burden of proof on a claimant alleging adoption to displace natural succession.

Subjects

adoptionoral evidenceappellate reviewburden of proofjoint Hindu familytrustpartitioncredibility of witnessesgiving and taking ceremonyevidence appraisal

Judgment

SSI
.
MAOHUSUOAN, OAS

v.
SMT. NARAYANI BAI AND OTH.ERS
B
November 25, 1982

(V.:iJ. TULZAPURKAR AND R,S, PATHAK, JJ.]

Evidence-Weight to be given to finding of facts by trial court-Principle
governing.re-a;Jpraisal of oral evfdence by appellate court. c
Evidence-Of witnesses holding position of relationship with parties-C,o~t
should examine its.probative value with reference to entire mosaic of facts appearing
on record.

Adoption-:--Fact of adoption to be proved in the same way as any Other
fact-Proof of physical act of givYlg and taking essential. D
Joint Hindu Family-Partit/011-Notice to co·shareTs of intent{on to
separat~ essentiaL

Jagannathdas and his wife Premwati had no children. Premwati suffered
from tuberculosis and died on September ,24, 1951:. ThC'.reafter Jagannathd8s
created a trust in respCct of-his estate which comprised of properties falling· to his
share in' a faMily partition. The. appe!latit filed a suit claiming that he bad been E
. adopted by, Jagannath~as and Premwati as their son on September 24, 1951, that
the trust was void and that be was entitled. to a half share in the estate. The trial
court ~ecrecd the suit after finding that_ the appell~t had in fact been ad.opted, by
Jagannathdas and Prf:mwati and that the adoption was val!d.

On appeal by the trustees ·the High Court reversed the finding· of tho trial
court taking a different view of the .evidence on record and dismissed the suit. F
Allowing tho appeal against tho order of tbo High Court,

HELD : ·in an appeal against a trial, .court decree, when the appellate
Court consider.s an issue turning on oral evidence it must bear in mind that it does G
not enjoy the advantage which the trial court had in having the witnesses before
il and of observing the manner in which they gave their testimor:iy. When there is
a conflict of-Oral evidence on any matter in issue and its resolution turns upon tht!I
credibility of the witnesses, the general rule is 'that the appellate court should
permit the findings of faCt1 rende'ted by the trial court to prevail unless it clearly
appears that some special feature about the evidence of a particular witness has
escaped the notice of the trial court or there is a sufficient balance of improbabi- H
lity 'to displace its opinion as to where the credibility lies. The principle is one of
practice and ~ovcms the weight to be given to· a finding of fact by the trial court.
852 SUPRBMB COUllt RB!>ORTli (1983 l 1 s.c.I<.
A Th~e is, of course, Do doubt that as a matter of law if the appraisal of the
evidence by the trial court Sl!ffers from a material irregularity or is basCd on
inadmissible evidence or ·on· a misreading of the'' evidence or on conjectures and
surmises the appellate court is entitled to interfere with the finding of fact.
[856·0-E; 857-B-C]

W.c. Macdonald.¥:. FredJ.atimer;A.i.R.1929• P.C. 15; Watt v. Thomas.
B L.R. 1947 A.C. 484 ; Sara Veeraswami alias Sara Veerra/u v. Talluri Narayya
(deceased) and Ors. A.I.R. •194~ P.C.·, 32-;Sarju Parshad v. Rafa Jwaleshwari
Pratap Narain Singh and Ors., [1950] S.C.R. 781 ; and The Asiatic Steam Navl·
cation Co. Ltd... v.·.Su~-[.,t. Arabinda Chakrppartl,.-.[1959] :Supp. 1 S.C.R. 979
- referred to. ·
I

c In the instant case•the questioo,whethe'r the" appellant•·had .in-, fa-ct.f•bcen
adopted by Jaganoatbdas and Premwati had been determined by the tri~l court
essentially1on·the\basi~.~f oral testimony anQ.-referenc_e 1had.been made ·to a few
documents ;;only:;:dn ': supplo-mentation-,·of. the ·oral.-evidcnoe, 1 ~·- The judgment ·of.1tho
trial court showed that it had analysed the testilliony of each material witn'!S&-.and
...,....
.

in reaching its conclusions on the issues of fact it had relie.d in some instances \
UP-{\D i~_,9w9~aPPf,~iS_f!.J of tQe rq~nn~.r in \\'.hiqh t.lje witne$$CS prese~t j)efpre it bad
fendered their testimony an~ ~~d.~eigAAd with,gfe.at_ ca~ the. probative_ value. of
the evidence in the context of established fact-. and probability. But the High
Co~r,t;Jia~, jn 4is~gr~ing,}yitl} the tri~Lcourt~ a)iQpted.~n erroneoq,$ apprpach. It
proceeded tO judge tbe credibility of the witnesses mainly with rCference to their
relationship with the parties without placing adequate weight on the nature of the
evidence and the· probabili~y of its truth· in ·the .. context· of ··the· surrounding cir-
cum'stances. It rejected the 1esti1:Dony of the'appellant's -witnesses substaOtially on
the ground that they: were related to the-ap~llant. This caDnot, by itself- consti-'
E tute a sufficient basis for discrediting·· the '·.witnesses. When a witness ·ibOldS'a·
position 9f rclationship faVouring the party producing-him or of possible·prejudicd
against the contesting party, it is incumbent on the court -to exercise -apptopriate
ca~tioii w·hen··appraisjqg bis evidence and to ·examine its11r_obative-value with'
reference to the entire mosaic ·of facts appearirig from the 'record.' It 'is ttot ~-open·
to the court .to reject the evidence without anything CQOre on the mere ground of
telationship·or favour of possible prejudice~~ The High· Court-.'flhould-:atsO have
F remind~d- it;e1r ·that· the witnesSes had given their eviden·ce before-tbe--triilcouri·
which-bad the opportunity of seeing their demeanour in the witne'ss box and the
appreciation of their evidence by ·the"f:rial' court had·tO-be-givcn·due-consideration
in the light of that fact. [856-C; 857-D; 861-E-G; 862-A-B]

(b)f1. It is well settled· that. a person1.who·1 seeks l•to -1displace 1th&f1naturali
succession':,.(to. property ~:by_ ~.alleginJ:i an @dop,tion must~i!isp_ba11gc_.tbe burdeni that1
lics,t.JPQ.n,him·1bY pfoof_~f ~he (~ctµm,o.f a,dop,tiott ~nd its validity-.. , It is 8.lso . true.,
that rf.hc :-eyid~n~ 1 :in·rpr0Qf, or i_he,a~opti9n,should.be free.from all suspicie::i of
fraµd-~4 1so.consistc11t:~nd_,pr0Pabl~ _as to,gi,v.~. no .occasion for:d9ubting .i's truth.
Nont-~~Iess ,·!he,., faq:-_-: Qf ~"dapt~9i;i must 9e prov,ed' i_n th.e1 same. way. ;q.s any o,ther.•
fact. . [862-C· IJ.] 1
Ht
A. Ragha.vamma and;-A.M.J,V. -A. Chanr.hatnmtf11and11An>:;:,A.l.Ro; 1964 ....S G;: ,~_..
136·and Kiabo,i;LQ/ v.·Chall!baii{l959] Supu,+ S.C.J!,. §98-referr~d..!Q.1.,,
.:: \

MADHUSUDAN V, NARAYAN! BAJ S53

J.' (c) For a valid adoption the physical .act ot.siviog and taking is an' A
au
esseittial reQuisite, a :~ceretnonY imperative· in - adap·tions, WbateVe'r (he caste~'
Abd~ihi!rreqC1iSit'e·is·•salisfied·iii"'its -essence·oh1y~bf·ttie actual delivery &rid· accep-
tance rof •the~boy ; 1even ·-thoti'gh)there~ exiSts' an·rexpresSibtJ. 'of:cOOSdn t'br \iifexdCii~Cd
deed1of,adoption ... .In 'SOme,cases,to complete.• the ·adoptibn;-a· •''dattat"hOmafu"
has_· been~ considered necessary but in the case-of ..the twice..born classes -no .such
ceremony is nccdCd if the adopted boy belongs to the same gotra as the adoptive
father. [862-E; 863-B] · B
Shoshinath v. Krlshnasunder (1881) L.R. 7· J.A, 250; Lakshman Singh v.
--.,. ...... s1n1,nRupkan,;ar [1962] I s.o:&.' 477• and''Bdl'Giilig'"adhafTtlak vi'Shrtiilva•' Pandit
· (1915) L.R. 42 I.A. 135 re(erred to.

,, ln tbeFin$tant cast:.tbe,Hiah Oaurt~t.elyiD.g•on:-rcertainubbsetvllf:iObs made
by. the Privy Councii ..-in . S11troogan v. Sabitra,• helld' that·~the'.\trial.(Jourt.rhad,not
c
scrutinised the CVidence relating to the· pCrformance Or the ceremony o(giving and
taking and also did' not have due regard to the probabilities and, o~ that ba5is,
. proceeded to' rCappraise the evidence in elaborate detail. When the Privy Council
ma:de· those rt>bSei:vations'(it hB.d in1mind'cases Where it·w&s paS~lbJe'no·doubt to
I make the ackno~ledgements, observe the cere~onies and give the nc;itiaes,adver:ted
to by jt. The High Court applied· that standard to ·a case which was quite
different. The issue here was whethei: the adoption had been effected in circums·
D
tances which plainly did not permit time for i:naking acknowledgements, observing
elabora,.te'teremnnies~attd 1 giving n0tices·genei8:tly; hAcc0'rding-_·to bdth"the parties,
Premwa.ti was seriously ill, ·The appellant's case hfthat she was so ill that she
wanted to effect the adoption that very day ... Tbe respondents have 8Ueged tbat
she was already incapable of.any acti_vity. tJ~.is,inco~ivable~that~ny·, elaborate
arrangements for adoPtion could have been envisaged. In consequence, the High
Court misdirected itself in ·applying a standard o_f proof to the evidence which the
E
circumstances did not .warrant. Even upon the approach adppted by the High
Court itStfiD.d~ngs are vitiatCd ·by•its, failure tO'tdnsider mitei'ial-eVidence od~record
and by its r~aching concJti'sions not sustainable in ·reason. ''T.he pappellant . baS
.\ .
pleaded the custom of his community that the act of giving and taking suffices to
effect a valid adoption and nothing has been shown to indicate that the further
.>-._ ceremony of 1 datta ho roam•, was necessary. [863..,:0·J;I; -864--A-P; 864..F; 863·B]
~
F.
Sutroogan v. Sabitra, (1866) 5 W.R. 109 referred to.

: • 'i_ ,l,
··(d) Separatiori from a Joinf'HiildU FaITtily is 'effected bY a ·clear aDd un-
eq"uivoc·ai:.cintlmaticn ~on! the (p·art of- a- member-of-·the1FarriilJ td hhf·co:sharers ·of
his desire to sever himseif from the Family.,_ ~A--mere ·U!:\Co·mmunicated'ldeclar.ation G
amounts to no mo~ than merely harbouring an intention to separate. A valid.
partition requires notice to the co·sharers of the intention to separate. [8.69-C-E]

!i•Girfo Bai v.~·Sadashiv,Dhundlr:a/;1{1·960]_:43-1'.AS- fSl ; Bal-Ktishart ittlld'iOrs.
v. Ram Krishan and Ors .., [1931],,581.A. 220; ·A Raghavamma and... Anr. v. A.
Cherichamma ahd Anr. A.I.R." 1964 ·s.c. 136; 'Puttrangamma ·and Ors.;v. M.S. H
Ranganita-:a~d Ors. A-.[R. 1968' S.C.' 1018 i 1and ! Kalyan_f<(detillj by L. ?Rs.• v. -
Narayanan and•Ofs.,, A.I.R. ·1-98018.C. 1173 {referred_ to'.
854 SUPREME COURT REPORTS 11983) I s.c.R.

A In the instant .case the trust deed contained a declaration on the part of
..
Jagannathdas of bis intention to separate in the event of the adoption deed being.
found valid by the court but no notice of such intention was given nor· could be
inferred from Jagannathdas to the appellant. Both the trial eourt and the High
Court rightly rejected the conterition tbat the declaration in the trust deed ·must
be regarded as effecting partition. (869-E; 869-AJ
B

CIVIL APPELLATE JURl_SDICTION: Civil Appeal No. 2376 of 1969. ..._ ,.-

c From the judgment and order dated the 30th September, 1963 ··~
of the Madhya Pradesh High Court in F.A. No. 82 of 1961.

B. D. Bal, Rameshwar Nath and N. Nagarathnam for the
Appellant.
D
S. B. Bhasme, S. S. Khanduja for Respondents I (a) to I (c).

S. S. Khandu}a, for Respondent No. I (d).
;.
B
,
M. N. Phadke, M. M. Sapre and J. S. Sinha ·for Respondents
Nos. 3 to 9 and 11.

F The Judgment of the Court was delivered by
\

PATHAK, J. This is a plaintiff's appeal on a certificate granted
under sub-clause (a) of clause (I) of Art. 133 of the Constitution by
G the High Court of Madhya Pradesh.

The appellant, who belongs to a prominent family of Jabalpur,
instituted a suit, out of which the present appeal arises, for partition
and separate possession and for rendition of accounts. The pro-
H perties in suit comprise most of the estate falling to the share of one
Seth Jagannathdas on a family partition of October 19, 1939.
MADHUSUDAN v. NARAYAN'! BAI (Pathak, J.) 855
The genealogy of the family may he set forth : A
. Diwan Bahadur Ballabhdas
.\ (died in 1925)
~~~~~~~~~~~~~~~~

Mannoolal Kanhaiyalal Jamnadas Mankuarbai
(died in 1916) (died in 1923) (died in 1939) B
M. Narayanihai I
I . (Respondent) · Narsinghdas
I (Respondent)

Jagannathdas Balkrisbandas Goverdhandas Madho- Tribhu-
M. Premwati sudandas wandas c
(Appellant)

Jagannatbdas and his wife Premwati had no children.. Premwati
suffered from tuberculosis for several years and died on September
· 24, 1951. After her death Jagannatbdas created a trust by ·a regis-
tered· deed dated March 17, 1952 called the Seth Mannoolal D
Jagannathdas Hospital Trust in respect of most of his estate, 'fie
reserved the right to revoke tho trust, but subsequently by a further
document dated Jilly, 14, 1952 he relinquished that right. Ever since
the inception of the trust the trustees have remained in possession of
the estate.
E
The appellant filed the present suit on September 24, 1957
against Jaganoathdas · and the other trustees claiming that he bad
been adopted by Jagannathdas and Premwati as ·their son on
September 24, 1951, that the trust was void and that he was entitled
to half the estate. Jagaonathdas died on October 7, 1957: during the·
peodeocy of the suit, and in consequence the appellant claimed a F
3/4th share of the estate, with the remaining I/4th being conceded to
Narayanibai the mother of Jagann.at~das.

The suit was decreed by the !rial court on September 27, 1961
and a preliminary decree was passed declaring the appellant entitled
to the share claimed by him and to partition and separate possession G
of the pro.perties. The trust was declared invalid and the trustees,
in consequence, were declared trespassers and liable to render
accounts to the appellant. ·
•
An appeal by the trustees was allowed by the High Court by its H
judgment and decree dated September 30, 1967 and the suit bas been
dismissed. ·

I
856 · SUPRl!ME::COUl!.T REPORTS .,[J983j J S.C.R.

A Several issuenvewtried by the trial court ·1and· considered on
appeal by the High Court, b_ut the most crucial and decisive issue,
··and' which •constitutes ·~be core of the controversy between· the
. '

parties, is whether the appellant can be said to be the adopted son of
Jagannathdas. -Tue'trial--court-found-that the.appellant -was -in-fact
adopted by Jagannathdas•and Premwati 'on September 24, 1951 and
B that the adoption was valid. The High Court• has reversed·,1 the
finding, taking a different view altogether of the evidence on the
record.

•The question ·wliether the appellant was in fact adopted" by
Jagannathdas and Premwati has been _determined essentially on.. the
a
basiii of oral testimony, and reforence has been made to few docu-
ments on1y in supplementation of the oral evidence. At this stage,
it would be right. to refer to the general principle that, in an appeal.
against a trial court decree, when"the appellate court con~iders',an •
'issu~ turning on oral evidence it must bear iri mind that it do'es'iloi:
D enjoy the advantage which the trial court had in having the witnesses
beforb· if and.of observing.the maqner in which they gave their "les't'i-
·mony. 'Whe.ti'there is a coriflfot of oral evidence ori· any matter 'in
issue and' its resohi\ion turns upon the credibilit{of the witnesses,
the general rule is thafthe appellate court should permit 'the' findings
of fact "rendered by the trial couri to prevail nnlesii it cfoarly appears
that some special feature about the evidence of a particular witness
·has escaped the notice of ·the trial· court or ·there is a >:Sufficient
balance ·of. improbability to displace its opinion as to where· the,
credibility· lies. In this connection, reference inay usefully· be made
to W.C. ·Macdonaldv. Fred Latimer(')•where the Privy Council·Iaid
down·that when there is· a• direct conflict between the· oral' evidence
F of the, parties, ·_and ·there ·is ·no documentary evidence that clearly'
affirms one view -or contradicts the other, and there is no sufficient
balance of improbability ·to displace the trial court's findings as to
. the truth of the oral evidence, the appellate court can interfere only
on vei:y clear ·proof of'•lllisfake by the trial· court. ··Io Watt v.
Thomasf) it was observed:· " ...... it is a cogent circ"ucnstaoce that a
G judge of'fil'st instance, when estimating the value· of verbal testimony
has the advantage (which is denied to courts of appeal) of having the
_witnesses before •him and· observing• the manner 'in which their
evidence is given." This was adverted to with approval by the
H
(!) AIR 1929 P.C. 15, 18.
(2\ L.R: 1947 A.C. 484, 486. ·
MADHUSUDAN v. NARAYAN! BAI (Pathak, J.) 857

Privy Council in Sara Veeraswami alias Sara Veerraju v. Tal/url
Narayya (deceased) and others(') .l'nd found favour with this Coun in
· Sarju Par shad v. Raja Jwaleshwari Pratap Narain Singh and Ors,( 2 ). It.
seems to' us that this app.roach should be placed in the ·forefront in .
considering whether the High Court· proceeded correctly in the
evaluation of the evidence before it when deciding to reverse the
findings of the trial court. The principle is one of practice and B
governs the weight to be given to a finding of fact by the trial court.
There is, of course, no doubt that as a matter of law if the appraisal
of the evidence by the triai court suffers from a material irregularity
or is based on inadmissible evidence ·or on a misreading of the
evidence or on conjectures and surmises the appellate court is entitled
to interfere with the finding of fact. Our attention has been drawn c
by the respondents to The Asiatic Steam Navigation Co. Lrd. v. Sub-
Lt:habindra Chakravarti( 3 ) ,but nothing said therein detracts,- in
otir opinion~ from the validity ·of the proposition enunciated here.

- The judgment of the .trial court shows that it analysed the
testimony of each material witness and in re1ching. its conclusions on
D
the issues' of fact it relied in some instances upon its own appraisal of -
the_ manner in which the witnesses present before it rendered their.
· testimony' and weighed with great care the probative value of the
evidence in the context of established fact and probability. On the
central issue whether the appellant had been adopted by Jagannathdas
and Premwati it commenced logically with an examination of the
circumstances in which an adoption could he envisag~d. Jagannathdas
and Premwati were without issue. The wife was suffering from
tuberculosis for about_ eight to ten years without any possibility of
improvement and her health was fast deteriorating. There· was no
hope that she would bear a child. Jagann"athdas admittedly belonged F
to an old respected family steeped in tradition and orthodox belief.
·He was the owner of considerable property. It was natural that
Jaoannathdas and Premwati should conceive the need for adopting a
so~. Jagannathdas was on the evidence, a sickly man of weak
mind and ·.of weak will and of little. education, and in the
administration· of his. affairs Mankuarbai, his father's sister, and G
Narsinghdas, his uncle's son, played a prominent role. Premwati
was aware of her husband's limitations and handicaps and quite
understandably was anxious that a son should be adopted. The
..... (I) AIR 1949 P.C. 32. H
(2) [1950] S.C.R. 781, 783.
(3) [1959] Supp, 1 SCR 979.
858 SUPREME COURT REPORTS [1983) I s.c.ll.

husband and wife were devoted to each othe.r, and all the · circum·
stances point to the conclusion that if Premwati desired the adoption
of a son Jagannathdas. would readily go along with the idea. He
would willingly agree to whatever. she wanted. Th.ere is evidence
that Mankuarbai, who Jived with Jagannathdas, knew of Premwati's
desire to adopt a son. the desire to adopt a son was known to others
B also, and they included Narsinghdas. For it was first decided to
consider the adoption of his son Gopalda s. There is clear evidence
that the child spent six months to a year in the house of Jagannathdas
spending the day with Premwati and sleeping during the night with
Mankuarbai. For some reason, however, it was decided not to
adopt him. There is a suggestion in the evidence that his horoscope
c indicated an early death, but ·the trial court .has not relied on this.
The desire to adopt a son continued aud it was in the circumstances
only natural to consider one of the sons of Seth Ja,mnadas, the only
other brother of the father of Jaganoathdas. The appellant,
Madhusudandas, was then a boy studying in college a:nd the choice
D
alighted on him. The trial court nlied on the evidence of, among
others, ·Narayanibai, mother of Jagannathdas, in reaching this con·
clusion. It has also referred to material clearly showing that when
Premwati went to Panchmarhi in the summer of 1951 and stayed
there for about two months with Narayanibai it was decided to
E send for Madhusudandas and have him stay wi.th them for some
time in order to determine whether, by his deportment and behaviour
and the manner of his living, he was a suitable boy for adoption.
The trial court found that the appellant·did go to Paochmarhi and
stayed with premwati for some days. The trial court has also analy·
sed the testimony of witnesses deposing to the contrary, and· has
F given .
. good reason for discarding that testimony. It inclined to the
view that the appellant had found favour with Jagannathdas ancl
Premwati and that they decided to adopt· him.

The next question considered by the trial court was whether
G ·the appellant was in fact adopted on September 24, 1951. Consider- ·
~ able evidence was led on both sides to show the physical and mental
condition of Premwati on that day, it being the case of the appellant
that she was in fit condition to effect the adoption while the case of
the contesting respondents was that her condition was so serious that
it forbade any such possibility. There is no doubt that her condition
H was not good, having suffered deterioration during the preeeding ·-"""''
four days. The appellant produced a number of witnesses to prov<:
that as she had grown very wealc slJe requested that the adoption.
MADHUSUDAN v. NARAYAN! BAI (Pathak; J.) 859

take place 'that very day and that she was able to participate in the A
ceremony of adoption. The qontesting respondents on the . other
hand, led evidence to show'that she had slipped into a "cyanosed
·State" and was totally incapable of any physical and mental activity.
The trial court devoted detailed attention to the issue and carefully
sifted the evidence adduced in support of the allegation that
Premwati was unable to speak and "completely cyanosed" on 8
September 24, 1951, and after weighing it in the light of uncontro-
vertible or admitted fact it found the allegation untrue. ' In the first
place, it observed that the written statement filed by Narsinghdas did
not describe her specifically as being "cyanosed". It found .that the
evidence of Dr. Choubey, who deposed that Premwati was unable to
respond, could not be believed, nor was it possible to rely on the c
nurse Rachel, whose name was not mentioned in the original list of
fifty-six witnesses filed by Narsinghdas, and who stated that she had
been told by Dr. Choubey that Premwa<i was in an unconscious state.
The entire case set up in evidence was completely demolisiled by the
undisputed fact that Premwati liad indeed signeq the adoption deed
on September 24, 1951. Much capital was made by the con,t~sting
D
respondents o( the fact that the appellant had not examined Gopinath
Vaidya to establish the condition of Premwati's health and tile fact
of adoption on September 24, 1951, but the trial court, in the course
of its judgment, has referred in some detail to the app'ellant's elfor ts
to have the evidence of that witness recorded. At the appellant's E'
instance a commission had been issued at Hathras for the examina-
tion of Ramsarandas and Gopinath Vaidya. On June 22, 1960 both .
witnesses were present before. the Commissioner at Hathras, but the
Commissioner took an unexpectedly long time in examining
Ramsarandas ori that day, and on the next day, to which he had
·deferred the examination of Gopinath Vaidya, he left town suddenly
to see his sick son. Toe appellant, the trial court' poinled out, sought
to examine the witness on a subsequent date in court at Jabalpur,
but the witness did not appear.

· In regard to the actual ceremony of adoption the trial court
took into account the evidence of several witnesses who were.
members of the branches of the parent family and who testified to
the adoption and to the physical and mental condition of Premwati'
at the time. The case of the appellant was supported by oral· and
documentary material evidencing that while he had attended college H'
in· the morning on that day he did not do so in the afternoon, there-
.by lending credence to the appellant's cas~ that on coming to 'know
860 •UPRl'ME C'OUR1 PEPORTS p 983] I s.c.R.
A from Premwati that she intended the adoption of the ~ppellant ·that
very day Sunderbai, the appellant's mother, sent for him· at mid-day
from his college.

The trial court then considered the matter of the execution . of
an adoption deed by Jagannathdas and Premwati as evidence of the
B adoption. It took into account the circumstances in which the
document was considered necessary, its execution and attestation,
and how it .was at first entrusted to Seth Govinddas and then
returned to Jagannathdas. It was not tlisputed that such a document
was in fact signed by Jagannathdas and Premwati on September 24,
1951, and the trial court repelled the case of the respondents that
c Jagannathdas was compelled· to sign it without any knowledge of its
contents· and that Premwati also did so in ignorance of whai it set
forth. The fact that Jagannathdas wa• aware of the nature of the
document is fully estabHsbed by his reference to it as an adoption
deed when he wrote out t_he receipt given to Seth Govinddas in
envidence of its return. The trial court also noted that Jaganoathdas
D disowned the adoption and the document later only when the cir-
cumstance around him changed as his wife approached her end and
the over-powering influence of Narsinghdas began to take hold over
his will.

E The adoption deed contains certain recitals which appear to
militate against the appellant's case. It refers to ceremonies, such as
the performance of a "havan", to which none of the appellant's
witnesses have testified. The respondents co_ntended from this that
no adoption had been effected at all. The trial court examined this
• apparent inconsistency and explained it with reference to the peculiar
li' circumstances in which the document had been prepared.

On the fact of adoption the trial court found itself fortified by
the contents of a letter dated August 21, 1957 written by
Jagannathdas to his mother stating that he had accepted the
G appellant as his son. The original document had been returned to
Jagannathdas and the trial court permitted a photograph of it to be
exhibited in evidence. The signatures on the letters were proved to
be those of Jagannathdas andthe trial court found that it was not a •
fabricated document. The trial court also referred to the testimony of
B . Narayanibai t.hat her son Jagannatbdas bad desired that his last rites
be performed by the appellant, and tb~re is no dispute that tbe .
appellant did perf9rm th~ .rites,
MAl>HUSUDAN v: NARAYAN! BAI (Pathak, J.) 861
'
There was a letter dated September 27, 1957 purporting to have A
·. _,
been written by Jagannathdas to Narsinghdas indicating that
Jagannathdas had taken exception to the appellant instituting the
present suit and be desired ,that the suit be resisted vigor9usly in
order to protect the trust. The trial court has commenied that this
letter was produced very late during the trial of the suit in Septemb~r
1961, without any adequate reason for the delay, and it observed B
that the document was not free from suspicion.

··• " In the result, the trial court held that the adoption of the
appellant stood proved in fact.

On the validity of the adoption the· trial court examined the ·
c
law and found that legal requisites for a valid adoption in the case of
the families of the appellant and Jagannathdas, who belonged to
Rajasthan, did not extend to more than the ceremony of giving and
taking, and that the ceremony of '·dattak homam" was not necessary
to effectuate the adoption of the appellant. Accordingly, the trial D
court took the view that the adoption was valid in law ..

The High Co~rt disagreed with the trial court and held that the.
adoption had not been established. In doing so, it adopted an
approach which, to our mind, i.s plainly erroneous. It proceeded to
judge the credibility of the witnesses mainly with reference to their
· relationship wi_th the parties without placing adequate weight on the
nature of the evidence and the probability of its truth in the context
· of the surrounding circumstances. It rejected the testimony ofthe
appellant's witnesses substantially on the ground that they were
related to the appellant or out of favour with Narsinghdas. This •
consideration, in our opinion, cannot by itself constitute a sufficient F
basis for discrediting the witness,s. We think the proper rule to be
that when a witness holds a-position of relationship favouring the
party producing him or of possible prejudice against the contesting
party, it is incumbent on ihe court to exercise appropriate caution
. when appraising his evidence and to examine its probative value with
· reference to the entire mosaic of facts appearing from the record. It·
G
• is not open to the court to reject the evidence with0ut anything more
on the mere ground of relationship or favour or possible prejudice.
The judgment '!nder appeal indicates thet the High Court commenced
with that mistaken approach, and we see its influence working H
throughout its appraisal of the testimony of the several witnesses. It
is only logical that with its approach so oriented even the most
SUPREME COURT REPORTS [i98jj 1 s.c.il.
A significant material adduced by the appellant should, in the eyes of
the High Court, take on a negative hue. The High Court should
also have reminded itself that these same witnesses had given their
evidence before the trial court, whicr had the opportunity of seeing
their demeanour in the witness box, and the appreciation of their
evidence by the trial court should have been given due consideration
8 in the light of that fact.

It is well settled that a person who seeks to displace the natural
succession to property by alleging an adoption must discharge the
burden that lies upon him by proof of the factum of adoption and
.. .
G its· validity. A. Raghavamma and Anr. v. A. Chanchamma and Anr (1)
It is also true that the evidence in proof of the adoption should be
free from all suspicion of fraud and so consistent and probable as to
give no occasion for doubting its truth. Kishori Lal v. Chaltibai.(')
Nonetheless the fact of adoption must be proved in the same way
as any other fact.
0
For a valid adoption, the physical act of giving and takin'g is
an essential requisite, a ceremoliy imperative in all adoptions,
whatever the caste. And this requisite is satisfied in its essence only
by the actual delivery and acceptance of the boy, even though there
exists an expression of consent or an executed deed of adoption.
E Shoshinath v. Krishnasunder.(') In Lakshman Singh v. 'Sm{ Rup-'
kanwar ,(') this Court briefly stated the law thus :

"Under the Hindu Law, whether among the regenerate
caste or among Sudras, there cannot be a valid adoption
unless the adoptive boy is transferred from one family to
F another and that can be done only by the ceremony of
giving and taking. The object of the corporeal giving and
receiving in adoption is obviously to secure due publicity .•
To achieve this object it is essential to have a formal cere·.
many. No particular form is prescribed for the ceremony,
G but the law requires that the natural parent shall hand over
. the adoptive boy and the adoptive parent shall receive him. '
The nature of the ceremony may vary depending upon the

(I) AIR 1964 (SC) 136.
H (21 [1959] (Supp) I SCR 698.
(3) [1881] LR. 7 I.A.1250,
(4) [1962] I SCR 477, 490.
MADHUSUDAN v. NARAYANJ. BAI (Pathak, ).) S63
circumstances of each case. •But a ceremony there shal I be, A
and giving and taking s~all be part of it."

In some cases, to complete·the adoption a "datta homam" has been
considered necessary, but in ·the case of the twice-born classes no
such ceremony is needed if the adopted boy bciongs ti;> the same
gotra as the adoptive father. Bal Gangadhar Tilak v. Shriniwas 8
Pandi,t.(1) In the present case, the appellant has pleaded the custom
of his community that the act of giving and taking suffices to effect a ·
valid adoption, and nothing has been shown to us to indicate that the •
further ceremony of "datta homam" was necessary.

Apparently, for this reason the parties concentrated in the "C
maiil liefore ihe High Court on the limited controversy whet!ier in
fact th~ ceremony of giving and taking had been performed. In the
course of adjudicating on this controversy, the High Court
referred to the observations of the. Privy Council in Sutroogan v.
Sabitra(2) :
D
, .,'Although n'eiiher ·written ac!Cnowledgements, nor the
performance ·of any 'reilgiobs cereniohial, are essential to
llie validity of 'adopiioris, such acknowledgements are
'usUahy given, and such cer'eriionfos 'observed, and notices
'giVen'df tlietimes when ·aaopfions are "to take pface, in all
fatnilies 6l' ·aistioctfon, as 'iliose·of 'Zarilindars' or opulent E.
-Brahhiihs, that 'wherever 'ihese have been omitted, it
bello\les tliis Court to regard with extreme suspfoion the
proof offered in support of an adoption. I would say, that
in no case should the rights of wives and daughters be
transferted to ·strangers, or in ore remote relatives, unless
F
the proof of adoption, by which the transfer i~ effected, be
proved by evidence free from all suspicion offraud, and so
consistent and probable as to give ·no occasion for doubt of
its truth." •

and it proceeded to hold that the trial court had not scrutinised the G
evidence relating to the :performance of the ceremony of giving and
taking and did not have due regard to th~ probabilities. On that
basis the High Court rested its justification for re-appraising the
e~idence in elaborate detail. Now, when the ~rivy Council made .
u
(!) [19JS] L.R. 42 I.A. 135.
(2) [1866] S W.R. (P.<:.) 109.
864 SUPRFM~ COURT REPORTS (1983] I S.C.R.

A those observations it had in mind cases where it was possible no
doubt to make the acknowledgements, observe the ceremonies and
give the notices adverted to by it. It had in contemplation the
usual kind of case where that was possible aod where though
possible it had not been done. The standard 'lf proof required
would then .have ·been the standard laid down by the Privy Council.
8 The High Court applied that standard to a case which was quite
different. Th~ issue here was whether the adoption has been effected.
in circumstances which plainly did not permit time for making
• acknowledgements, . observing elaborate ceremonies and g1vmg
notices generally. According to both parties, Premwati was seriously
ill. The appellant's case is that she was so ill that she wanted to
a effect the adoption that very day. The respondents have alleged
that she was already incapable of any activity. It is inconceivable
that any elaborate arrangements for adoption could have been
envisaged. In consequence, the High Court misdirected itself in
applying a siandard of proof to the evidence which the circumstances
did not warrant. Its appreciation of the evidence is· founded in that
D
misdirection, leading to findings which are accordingly vitiated. On
the.contrary we find that the trial court examined the evidence
relating to the actual adoption with great care and pointed out that
as Jagannathdas had accepted Premwati's suggestion to have the
adoption that very day and during her Jifotime the issue of invitations
to relations and friends, the observing of elaborate ceremonies and
tbe lf1king of a photograph were out of the question and that only
the bare essentials of the ceremony of giving and taking were
possible.

Even upon the approach adopted by the High Court, we find
F its findings vitiated by· its failure to consider material evidence on
the record and its reaching conclusions not substainable in reason.
We have already pointed ounhat the allegation that Premwati was
unconscious and in a cyanosed state on September 24, ·1951 is
belied by her undisputed signature affixed oo the adoption deed on
that day. The High Court omitted to take this• aspect of the case
G into account when it allowed the evidence of Dr. Choubey, the nurse
Rachel and others to find favour with it. The High Court also
failed to appreciate that. in the application sent by Jagannathdas to

H
the Deputy Commissioner and the District Superintendent of Police
on September 27, i95.1 Jaga.nnathdas had stated tbat Premwati's
illness took a serious turn at about 5 O'clock in the afternoon on
-
September 24, .1951 and it was from that hour that ber condition
MADHUSUDAN v. NARAYANI BAI (Pathak, J.) 865
I
became progressively worso until she ·expired at about 9 O'clock A
the same evening. This document has been produced by the
contesting respondents. It does .not detract from the case of the
appellant that Premwati's condition was not so precarious as to
·forbid her from participating in the cere1nony of adoption at about
3 O'clock in the afternoon. On the contrary, had Premwati been
B
unconscious and in a cyanosed state throughout the day, as alleged
by the contesting respondents, the statement made by Jagannathdas
in his letter of September 27, 1951 would have been phrased.
differently. ' .

Ramsarandas deposed that he saw Premwati in. the morning of
September 24, 1951 and she insisted on having .. the adoption that
c
very day because although· "there was still lime for the date of
adoptfon" her health was deteriorating. The High Court .declined
to believe Ramsarandas because there was no evidence that any date
had been fixed earlier for the adoption. We think the niore reason-
able ·way of looking at it is that Premwati had intended to mean
that although otherwise there was still time for fixing a date in the D
future for adoption the poor state of her health did not permit
her waiting any longer and the adoption should take place that same
day.

The High Court has discovered apparent discrepancies in the
testimony of some of the witnesses produced by the appellant, but E
it seems to us ·that it has attempted to make too fine a point in
regard to what those witnesses said or did, not say. The High Court
inferred that . Sunderbai did not. visit Premwati at mid-day on
··~ Sep tern ber 24, 1951 and this was .based on the statement of Rattan
Kumari that Sunderbai was not in Premwati's room nor in the F
adjoining verandah when Rattan Kumari visited Premwati between
noon and 12-30 p.m. The High Court failed to note that this was
about the time when Sunderbai had left Prem wati to make arrange-
ments for summoning the appellan( from his college to come to
the house. The High C~nrt has also commented that it was not G
natural that Su.nderbai should not have asked Premwati why her
soti wa·s being called. The High Court in our opinion omitted to
consider that it had been understood for' quite some time: that
Jagannathdas and · Premwati would adopt the appellant and lt was
natural to expect that on knowing of Premwati's seriom condition H
Sunderbai should visit Premwati and at her instance send for her
son for the purpose of adoption. Further, we have no doubt in our
866 SUPREME .c0URT REPORTS (1983] 1 S.C:.R.
I
A mind in view of the om! and documentary evidence that the appellant
attended college up to the ·lunch recess and .Jeft it thereafter. The
High Court has rejected that material without good reason.

The High Court bas taken the view that Jagannathdas was
8 averse to adopting the appellant, and it has relied on the eviMnce ./
of 'J\fotilal, a witness of the respondents. It is clear from "the
evidence that at first Gopaldas, the son of Narsingbdas was consider-
ed for adoption and thereafter the a·ppellant was kept in view for
that.purpose. There can be absolutely no doubt that Premwati was
anxious to adopt a son during her lifetime and was actively involved
in finding a suitable boy for that purpose. It is impossible to believe
c that Jagarinathdas, her husband, was not privy to all that was
going on and was not i~ agreement with J>remwati in what she
'intended. The evidence demonstrates that he was a loving and
·devoted husband ahd greatly concerned with the gratification of' his
wife's wishes. His attitude ·to the ·appellant's adoption changed
D ·only as Premwati's life ebbed away, and the influence ·of Narsinghda·s,
without any significant force to counter it, began to spread its pall
over him. We must remember that the real possibility ·of the·
adoption of his son Gopaldas, at an earlier stage, must have greaily
appealed to Narsinghdas as it wouid have extended his domain over
the estate of Jagannathdas. When, however, that i)Ossibility died
E and it became evident that Jagannathdas and Premwati wotillt adopt
the appellant instead, his attitude towards the intended adoption
would inevitably have been hostile. It must not be forgotten that
he had ·been intimately associated with the administration of. the
affairs of Jagannathdas and there is evidence thanhey met almost
F daily. In the circumstances, the decision of Jil.gannathdas and
Premwati to abandon their intention to adopt his son Gopaldas and
to prefer the appe!Jant must have hurt considerably. The·events
which took place on September 24, 1951 moved much too rapidly
for him to have taken any effective·counter•measures, and he could
·have been able to assert his will over Jagannathdas only after
Premwati's restraining influence was removed from the scene. With
a person of Jagannathdas's weak character and at a time when he
was oppressed by his wife's death and bewildered by the confusion
surrounding him, that would not have been difficult. Indeed, ·the
pressure of Narsinghdas's influence began to manifest itself almost
H shortly after the ·adoption bad taken place, and Premwati, who was
aware of the injury which be could work on her husband's simple
MADH\Js\JDAN v. NARA\ ANI BAI (Pathak, J.) 867

mind, insisted on the execution of an adoption deed while she was A
still alive in order to protect the adoption. · That her misgivings
were not unfounded is evident. from the circumstance that shortly
after the document had been entrusted to Seth Govinddas,
Jagannathdas asked for its return.

The High Court has. declined to accept the adoption also on
the ground that the adoption deed mentioned the performance of
a '.'havan" and other ceremonies when in fact there· is no evidence
whatever that those ceremonies were performed. It does appear
that there is an inconsistency between the case of the appellant' and
some of the recitals in. the adoption deed. The inconsistency has G
been explain_ed satisfactorily by. the trial court. It is apparent that
the document was prepared by the lawyer, .Jamna Prasad Dubey,
containing recitals usual in such a document, and Manmoh_andas
who had entrusted him with the task could have given him only the
briefest instructions in regard to its contents. Time was running
out fast as Premwati's condition grew progressively worse, and when D
it was brought before her and read out it was too late to 'effect a
change in some of the recitals, and ·con·sequently it was signell as it
was by Jagannathdas ·and Premwati. ·
"'
The complaints made by Jagannaihdas to the Deputy E
Commissioner and the District Superintendent of Police as well as
the public notices published in the. newspapers disclaiming execution
of the adoption.. deed and the adoption are explicable only in the
context of the overpowering influence of Narsinghdas .. So also is
the creation of the Trust in which Narsinghdas secured for himself
the office of working trustee in respect of most of the properties. It F
is significant that the power ohevocation reserved to himself by
. Jagannathdas was relinquished by him within a merefour mon(l:is
of the creation of the Trust. The entire conduct of Jagannathdas
persisting thereafter can be ascribed to the position to which he had
been persuaded, namely, one of active. opposition to the appellant's
claim of adoption. The attitude was tempered only later, when a G
few weeks before his death he wrote to his mother that he had
"ow.ned" the appellant as his adopted son.

The High Court has referred to some instances where the
appellant, inconsistently with . his Claim of adoption, continued to H·
868 SUPIU!i.IE COtlRT REPORTS [1983) 1 s.C.11..

A show himself as the son of Seth Jamnadas. There were the partition
deed, the application, for mutation of names in Naya Mahal, the
Income-tax proceeding and other records, but cleaily these are
matters in respect of which . the appellant plainly considered it
judicious not to assert his title in proceedings which could only
·result in its summary determination but to prefer to wait and institute
an appropriate suit for an authoritative ·declaration of his status.
The determination to file the suit must have gathered impetus from
the changing attitude of Jagannathdas in favour of the appellant and
reflected in his letter dated August 21, 1957 addressed to his mother '
'
.
-
in wliich he clearly states his acceptance of the appellant as his son.
It may be noted that this case of adoption was not conceived for the.
c first time by the appellant when the suit was filed ; the claim to that
status had been asserted by an application made as early as October
20, 1951.

The High.Court ·rejected the letter dated August 21, 19i7
D written by Jagannathdas to his mother accepting the appellant as his
son. We are not impressed by the reasons given by it. It erred in
assuming that the.photostat copy was produced only at the stage of
evidence. It was in fact filed by the appellant on February 15, 1958 ·
before the written statements of the defendants were filed.

E
We have referred to some ·of the errors which vitiate the
judgment of the High Court. It is not necessary, we think. to advert
to all of them .. Jt is sufficient to say that there was no adequaie
ground for the High Court to interfere with the finding of the trial'
court. ·we are of opinion that the finding ~f the High Court thai
F - the appellant bad not proved his adoption _must be set aside and that
of the trial court restored.

It .is urged by the contesting respondents that in the event of
the Court holding that the appellant is the adopted son of the
G Jagannathdas and Premwati he can be found entitled to a half share
· only in the properties. The submission is based on a recital in the
trust deed executed by Jagannathdas that if the adoption deed "is
declared valid. by the highest court then, today, I expresB, ·by this
writing, a strong and unequivocal intention to separate at once from
the heir by .the aforesaid alleged adoption deed and direct the
trustees that in that event they shall get the property immediately
MADHUSUDAN v. NARAYAN! BAI (Pathak, J.) 869

partitioned and apply at least.my half share in the property for fulfil- A
ment of the objects of the trust.'' It is contended that the declara-
tion contained in the trusL deed must be regarded as effecting a
partition whereby the share of Jagannathdas in the property stood
separated froin the share of .the appellant and the.\former share must
be treated as the subject of the trust. Both .the trial court and· the
High Court rejected the contention. They held that a valid partition B
required notice to the co-sharer of the intention to separate, and no
such notice was given nor could be inferred from Jagannathdas to
the appellant. We are in agreement with the courts below. It was
held by the Pr.ivy Council in Girja Bai v. Sadashiv Dhundiraj(') and
Bal Krishan and Ors. v. Ram Krishan and Ors.(') that a separation is
effected by a clear and unequivocal intimation on the part of one c
. member of a Joint Hindu Family to his co·sharers of his desire to
sever himself from the Joint Family. In A. Raghavamma and Anr. v.
Chenchamma and Anr. (Supra), Puttrangamma and Others v. M.S.
Ranganna and Ors.(3) and Kalyani (dead) by L. Rs. v. Narayanan and
Ors.(') this Court held that there should be an intimation, indication
D
or representation of such intention, and that this manifestation or
declaration of intention should be to the knowledge of the persons
affected because a mere uncommunicated declaration amounts to no
more than merely harbourin·g an intention to separate. In the
present case, there is no evidence whatever to show that the intention
to separate was communicated by Jagannathdas to the appellant at
any time when creating the trusi. There are other grounds on which
the appellant contends "that ihe declaration of separation in the trust
deed is wholly in effective, but we consider it unnecessary to consider
them here.

It may be pointed out that the High Court. also repelled the
plea raised by the contesting respondents that pursuant to a com.
promise affected by Narayanibai in a suit filed by. her against the
trust it was not open to'.her to claim from the trust a one·fourth share
in that estate. The High Court rightly pointed out that the question
did not arise because she could not be regarded as having given up
G
a right then which vested in her only on the death of Jagannathdas
on October 7, 1957. O_n the question whether the suit was barred

(I) [1960] 43 I.A. 151.
(2) [1931] 58 I.A. 220. B
· (3) AIR 1968 SC 1018.
(4) AIR 1980 SC 1173,
870 SUPREME COURT REPORTS [1983) 1 s.c.R.
A by limitation the High CoQrt, in our opinion, also rightly concurred
rith the trial court in maintaining that it was not. No argument
has been seriously raised before us in respect of these two points.

In the result the appeal is allowed, the judgment and decree of
the High Court are set aside and the judgment and decree of the
B trial court are restored. The appellant is entitled to his costs from
the second and ninth respondents.

H.L.C. Appeal allowed.

•