OM PRAKASH SHARMA@O.P. JOSHIversusRAJENDRA PRASAD SHEWDA & ORS.

                        [2015] 10 S.C.R. 574


A             OM PRAKASH SHARMA@O.P. JOSHI
                                  v.
             RAJENDRA PRASAD SHEWDA & ORS.
               (Civil Appeal Nos.8609-8610 of 2009)
B                       OCTOBER 09, 2015
            [RANJAN GOGOi AND N.V. RAMANA, JJ.]

         Hindu law: Property dispute - Purchase of property by
    husband in the name of wife - Held: In the instant case,
C   property was purchased from the funds of husband for the
    benefit of his wife and therefore she was the real owner of the
    property- This was in accordance with the practice prevailing
    in a Hindu family where husband normally looks after and
    manages the property of the wife - Benami transaction -
0
    Hindu Women's Right to Property Act, 1937.

       Adoption: Claim over property by plaintiff on the ground
  that the said property devolved upon her husband who was
E adopted by the o,wner of the said property- - Defendant no. 1
  was also the adopted son of daughter of the owner of the
  property- Dispute regarding such adoptions - Held: Plaintiff
  failed to prove that his adoption was valid - Evidence of
  witnesses were not admissible uls.32(5) and (6) inasmuch
F as on the date when the said evidence was recordea the
  controversy with regard to adoption of plaintiff's husband had
  already occurred - If plaintiff failed to prove his adoption then
  it must be held that suit property devolved upon the daughter
  of the owner of the suit property- Claim of defendant no. 1 to
G be adopted son could have been challenged only by such
  legal heirs on whom the property would have devolved
  following the death of owner in the event the adoption of
  defendant no. 1 is to be held to be invalid- No such challenge
  was made - High Court was justified in not entering into the
H issue of validity of adoption of defendant no. 1 as such issue
                                 574
                   '
  OM PRAKASH SHARMA@ O.P. JOSHI v. RAJENDRA                 575
              PRASAD SHEWDA

had become redundant- Evidence Act, 1872- ss.32(5) and A
(6).

    Dismissing the appeals, the Court

     HELD: 1. Th~ purchase of property by a husband in
                                                             8
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 c
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
immov~ble property by a husband in the name of the o
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. The High E
Court was perfectly justified in coming to the conclusion
that the property though purchased from the funds of
husband was really for the benefit of his widow and
therefore she was the real owner of the property. The
fact that the property was managed by husband which F
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 G
consistent with the ownership of the property by widow.
[Paras 10, 12] [581-E-G; 584-D-H]

    2. The plaintiff herself alongwith PW-2 were the
witnesses who have testified in support of the claim of H
576         SUPREME COURT REPORTS                [2015] 10 S.C.R.


A     adoption of her husband. Specifically, PW-2 though had
      stated that the adoption of husband of plaintiff 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
 B    when her sons got married and most surprisingly the
      age of her elder son at the time pf his marriage; the
      present age of the elder son or even the present calendar
      year. The evidence of the three witnesses would be
      inadmissible under Section 32(5) & (6) of the Evidence
C     Act inasmuch as on the date when the said evidence
      was recorded the controversy with regard to the
      adoption of husband of plaintiff had already occurred.
      The claim of the defendant No.1 to be the adopted son
      of the daughter of original owner could have been
 0
      challenged only by such legal heirs on whom the
      property would have devolved following the death of his
      mother in the event the adoption of the defendant No. 1
      is to be held to be invalid. In this context, the next legal
 E    heir who·would have been entitled to succeed to the said
      property if the adoption of defen~ant No.1 is to be treated
      as invalid would not be the origin.al plaintiff inasmuch
      there was another heir who could have claimed a better
      title in such a situation. The High Court was fully justified
 F    in not entering into the issue of validity of the adoption
      of defendant No.1 or the gift deed executed in his favour
      as the said issues had become redundant/
      inconsequential. [Paras 17, 19 to 21] [587-F; 588-C-E;
      589-G-H; 590-A-C]
 G
           Jaydayal Poddar (Deceased) through L. Rs. & Anr.
           v. Mst. Bibi Hazra & Ors. AIR 1974 SC 171": 1974
           (1) SCR 70; Binapani Paul v. Pratima Ghosh &
           Ors. 2001 (5) SCR 946: 2001 (6) sec 100;
 H         Kanakarathanammal v. S.Loganatha Mudaliar &
  OM PRAKASH SHARMA@ O.P. JOSHI v. RAJENDRA                         577
              PRASAD SHEWDA

     Anr. AIR 1965 SC 271: 1964 SCR 1; Rahasa                       A
     Pandiani by L. Rs. & Ors. v. Gokulananda Panda
     & Ors. AIR 1987 SC 962; Kalindindi Venkata
     Subbaraju & Ors. v. Chinta/apati Subbaraju & Ors.
     AIR 1968 SC 947:1968 SCR 292 - relied on.
                                                                    B
                   Case Law Reference

    1974 (1) SCR 70 .            relied on.          para 10

    2007 (5) SCR 946             relied on.          para 11
                                                                    c
    1964 SCR 1                   relied on.          para 12

    AIR 1987 SC 962              relied on.          para 15

    1968 SCR 292                 relied on.          para 19
                                                                    D
   CIVIL APPELLATE JURISDICTION: Civil Appeal Nos.
8609-8610 of2009.

    From the Judgment and Order dated 04.11.2008 of the
High Court at Calcutta in F. A. No. 160 of 1992 with COT No.        E
878of1996.

    Pranab Kumar Mullick for the Appellant.

    M. N. Krishnamani, Ranjan Mukherjee, Abhijit Sengupta,          F
Dibya Dyuti Banerjee, Kon ark Tyagi for the Respondents.

    The Judgment of the Court was delivered by

    RANJAN GOGOi, J. 1. The suit property comprises of
land and building covered by holding No. L-395 on the Thana G
Lane within the Purulia Municipality, District Purulia, West
Bengal.

    2. The following genealogical table may be set out for
ready reference and clarity of the facts that will be required to   H
578          SUPREME COURT REPORTS                        [2015] 10 S.C.R.


A     be noticed.

                     Jagannath Joshi                  Moni Debi
                    (Died October 1953)            (Died August 1963)

                             I                               I
 B                           I                               I
      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)
                       I
                       I                                            I
         Rajendra Pd. Shewda                    Om Prakash Sharma@ Joshi
C        (allegedly adopted son)                (adopted son)
         (Respondent No.1)                      (Petitioner No.1)

        3. 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
 D 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
 E adopted by Jagannath Joshi and Moni Debi in the year 1942.
   After the marriage of Sita ram 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
 F 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
 G 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
   Kish_ori Debi Joshi. Accordingly, the plaintiff became the
   absolute owner of the entire suit property. In this regard, the
 H plaintiff further pleaded that respondent No.1 Rajendra Prasad
  OM PRAKASH SHARMA@O.P. JOSHI v. RAJENDRA                         579
       PRASAD SHEWDA [RANJAN GOGOi, J.]

Shewda who claimed to be the adopted son of Gomati Debi            A
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 B
property was purchased with the funds of Jagannath Joshi the
said purchase was made for the benefit of Mani 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 C
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 Mani Debi in August 1963 the entire property devolved on D
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 E
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 Sita ram Joshi, predeceased husband of F
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 G
death of Mani 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 H
plaintiff as well as respondent No.1 were held to be entitled to
580         SUPREME COURT REPORTS                   [2015] 10 S.C.R.


A     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
 s     her full share in the suit property. During the pendency of the
       appeal, the original plaintiff Kishori Debi Joshi died and she
     · W$$.substituted by her adopted son Om Prakash Sharma who
       is the appellant before us.

c.     . 7. The High Court, on an exhaustive consideration of the
   issues arising. for consideration and the facts and materials
   on re.cord, by the impugned judgment and order dated
   4.11.2008, came to the conclusion that th~'purchase of the
   property by Jagannath was not a benami purchase and that
 D 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
 E 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.
 F 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 Sita ram 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
 G 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
 H the appeal filed by the defendant No. 1 was allowed and the
   cross-objections filed by the plaintiff were dismissed.
  OM PRAKASH SHARMA@ O.P. JOSHI v. RAJENDRA                     581
       PRASAD SHEWDA [RANJAN GOGOi, J.]

Aggrieved the present appeals have been filed by the plaintiff. ·A

    8. Three questions, delineated below, arise for
consideration in the present appeals -

  1)   Did the suit property belong to Jagannath Joshi or his
                                                                8
       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 C
       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 KumarMullick, learned D
counsel for the appellant and Shri M.N. Kl'ishnamani, leamed
senior counsel for the respondents.

      10. The purchase of property by a h_usband in the name of
his wife is a specie of Benami purchase that had been E
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 F
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 G
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 H
582            SUPREME COURT REPORTS                     [2015] 10 S.C.R.

A  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
 B transaction can be found in Javdaval 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
 c             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
 D             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
 E
               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
 F
               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
 G             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

 H    1
          AIR 1974 SC 171 para 6
  OM PRAKASH SHARMA@O.P. JOSHI v. RAJENDRA                         583
       PRASAD SHEWDA [RANJAN GOGOi, J.]

      probabilities and for gathering the relevant indicia, the A
      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
                                                                 8
      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 afterthe sale.                   c
      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
                                                                 0
      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         E
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      F
      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:
                                                                   G
       (a) surrounding circumstances,

       (b) relationship of the parties,

2 2001 (6)   sec 1oo                                               H
584         SUPREME COURT REPORTS                   [2015] 10 S.C.R.


A           (c) motives governing their action in bringing about the
            transaction, and

            (cl) their subsequent conduct.

            27. All the four factors stated may have to be considered
B
            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
c           legal position obtaining at the relevant time may be
            considered to be a relevant factor for proving peculiar
            circumstances .existing arid the conduct of Or. Ghosh ·
            which is demonstrated by his having signed the
            registered power of attorney."
D
           12. Applying the aforesaid principles to the facts of the
      pr~sent r.ase 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
E     widow Mani 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
 F    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
G     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
H     expressed by this Court in Kanakarathanammal vs.
     OM PRAKASH SHARMA@ O.P. JOSHI v. RAJENDRA                       585
          PRASAD SHEWDA [RANJAN GOGOi, J.]

S.Loganatha Mudaliar & Anr.2 the relevant part of which is          A
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
                                                                      8
        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   c
        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 D
        husband manages the property on her behal( 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 E
        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 F
        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 G
        transaction had been received by her from her husband."
         (Underlining is ours)
       13. On the basis of the above, we have no reason to
3
                                                                     H
    AIR 1965 SC 271
586            SUPREME COURT REPORTS                    [2015] 10 S.C.R.


A     disagree with the conclusion of the High Court that the
      property was owned by Mani Debi although consideration
      money for the same may have been made available by her
      husband, Jagannath.

 s         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
C     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
 D            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

 E        -15. Reiterating the above view in Rahasa Pandiani by
      L. Rs. & Ors. vs. Gokulananda Panda & OrsA 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
 F
              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
 G            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
 H ' AIR 1959 SC 504 [Kishori Lal Vs. Ms!. Chaltibai]
      5   AIR 1987 SC 962
  OM PRAKASH SHARMA@ O.P. JOSHI v. RAJENDRA                            587
       PRASAD SHEWDA [RANJAN GOGOi, J.]

     unscrupulous practices out of their lust for property. If there   A
     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             B
     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        C
     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              D
     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."                     E

    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 F
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 G
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 Sita ram
had been adopted by Jagannath.                 ·
                                                                       H
588            SUPREME COURT REPORTS                 [2015] 10S.C.R.


A          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 plainaff that the said letter sent from Purulia shows
      that Sitaram was the adopted son of Jagannath as the sender
 B    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
C 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
D 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
E 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
F 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
    /item motam by persons who are dead i.e. before the
G 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.

 H    6
          AIR 1968 SC 947
   OM PRAKASH SHARMA@ O.P. JOSHI v. RAJENDRA                       589
        PRASAD SHEWDA [RANJAN GOGOi, J.]

      "12. As regards the written statement of Surayamma the A
      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 /item motam by persons
      who are dead i.e. before the commencement of any B
      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 C
      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 /item motam which means not merely D
      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 E
  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 F
  was adopted by Jagannath. If the suit property was owned by
  Moni Debi and not by Jagannath and Sjtaram 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 G
  of Gomati could have been challenged only by such legal heirs
  on whom the property would have devolved following the death
  ofGomati 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 H
590          SUPREME COURT REPORTS                 [2015] 10 S.C.R.


A 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
B 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
C     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.

D         22. For all the aforesaid reasons and in the light of what
                                         I
      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.
E
      Devika Gujral                                  Appeals dismissed.