IMPORTANT POINT :
In case of absolute dwyamushyayana form of adoption, there must be an agreement to effect that the person given in adoption shall be the son of both, i.e., the natural father as well as adoptive father and such an agreement must be proved like any other fact by the party alleging the same.

Headnote:(i) Hindu Adoptions and Maintenance Act, 1956-Adoption much before coming into force of the Act-Parties will be governed by the law which was in force at the time of adoption, i.e. customary law-Only person who can lawfully give a boy in adoption are his father and his mother (Mulla s Hindu Law)-Plaintiff s case that adoption was in Dwyamushyayana form-No lis between parties as to whether G was given in adoption by his father or brother-Courts could not have gone into the question even if some evidence was adduced-Whether finding recorded by first appellate court that G was given in adoption by his natural father suffered from any legal infirmity-(No). (Para 9)
       (ii) HINDU LAW-Adoption under customary law- Dwyamushyayana form-Requirements of-There must be an agreement to the effect that the person given in adoption shall be the son of both, natural fathers as well as adoptive father-Such an agreement must be proved like any other fact by the party alleging the same-Finding recorded by first appellate court that plaintiffs failed to prove that there was such an agreement between parties-Adoption of G held to be in ordinary form-Finding recorded being a pure finding of fact recorded by first appellate Court, final Court of fact-It could not have been interfered with by High Court in exercise of powers u/s 100 CPC-No question of law was involved-There being no ground to interfere with the said finding recorded by final court of fact-High Court was not justified in allowing appeals and decreeing the suit by restoring judgment and decree passed by trial Court.
       Held : The dwyamushyayana adopted son is of two kinds, (1) absolute, i.e. nitya dwyamushyayana, and (2) incomplete i.e. anitya dwyamushyayana. The absolute dwyamushyayana son is one who is given in adoption with this stipulation. "This is the son of us two (the natural father and the adopter): "The incomplete dwyamushyayana son is one who is initiated by the natural father in the ceremonies ending with tonsure and by the adoptive father in the ceremonies commencing with the investiture of the sacred thread. As he is initiated in the gotras (family names) of both the natural father and the adoptive father, he is considered to be the son of two fathers but incompletely. If a child after being born is adopted so that his initiation under both gotras be wanting, he would partake only of the gotras of the adoptive father. (Para 12)
       In the case on hand, the first appellate court, after taking into consideration and discussing the oral and documentary evidence threadbare, recorded a finding that the plaintiffs failed to prove that there was an agreement between the natural and the adoptive fathers to the effect that adopted son shall be treated to be the son of both of them and entitled to inherit their properties and consequently, the adoption of Goverdhan Das was in ordinary form. Mr. V.A. Mohta, learned Senior Counsel appearing on behalf of the respondents strenuously contended that the finding recorded by the first appellate court was unwarranted. The finding on this point recorded by the first appellate court which was final court of fact was a pure finding of fact and could not have been interfered with by the High Court in the exercise of powers conferred upon it under Section 100 of the Code of Civil Procedure 1908, more so when no question of law much less substantial one was involved. Apart from that, after giving our anxious consideration, we do not find any ground whatsoever to interfere with the said finding recorded by the final court of fact. This being the position, in our view, the High Court was not justified in allowing the appeals and decreeing the suit by restoring judgment and decree passed by the trial Court. (Para 20)

JUDGMENT

B.N. Agrawal, J.-These appeals by special leave have been filed by the heirs of defendant No. 1 Rajgopal (since deceased) against the judgment rendered by Karnataka High Court whereby judgment and decree passed by the first appellate court dismissing the suit have been set aside and those of the trial Court decreeing the suit restored.

2. The plaintiffs/respondents filed a suit for declaration of title in relation to the properties described in schedule appended to the plaint and for recovery of possession thereof. Their case, inter alia, was that one Moti Lal had two wives. From the first wife, he had a son Kishan Lal and from the second, son Goverdhan Das and the properties in question belonged to their joint family. Moti Lal and his brother Uday Ram belonged to Mantri family. In their community, there was a custom of adoption in Dwyamushyayana" form, according to which the person adopted would not sever his interest in the estate of natural parents and, at the same time, would acquire interest in the properties of adoptive father upon his adoption, provided there was an agreement between the natural father and the adoptive father to the effect that he will be considered to be son of both of them. As Uday Ram had no male issue, he adopted Goverdhan Das in Dwyamushyayana form. One Chandra Bai was the wife of Goverdhan Das and Kishan Gopal-plaintiff No. 1 and Srinivas-plaintiff No. 2 were their sons. Sundra Bai-defendant No. 3 was the keep of Kishan Lal from whom he had two sons, namely, Rajgopal-defendant No. 1 and Ramgopal-defendant No. 2 and as Sundra Bai was not legally married wife of Kishan Lal, defendant Nos. 1 and 2 were illegitimate children of Kishan Lal from her. Goverdhan Das and his sons were in joint possession of the properties of Uday Ram with him as well as those of Moti Lal with Kishan Lal and his children. Kishan Lal died in the year 1939 and Goverdhan Das in 1945. Thereafter as the sons of Kishan Lal denied rights of the plaintiff Nos. 1 and 2 and their father in the properties which belonged to the joint families of Kishan Lal and Goverdhan Das, the same necessitated filing of the present suit.

3. In the suit, defendants entered appearance denying claim of the plaintiffs that the adoption was in Dwyamushyayana form and according to them, the same was in ordinary form, as such Goverdhan Das upon his adoption ceased to have any right in the estate of natural father-Moti Lal and upon the death of Kishan Lal, entire property devolved upon his two sons who were legitimate ones as Sundra Bai was legally married wife of Kishan Lal, accordingly plaintiffs had no right to file the present suit.

4. In support of their respective cases, both the parties adduced oral and documentary evidence and the trial court dismissed the suit on grounds that the same was barred by limitation, adoption of Goverdhan Das was not in Dwyamushyayana form but in ordinary form as such Goverdhan Das after adoption ceased to have any right in the estate of natural father, Goverdhan Das was given in adoption by his father Moti Lal and not by his brother Kishan Lal, Sundra Bai was legally married wife of Kishan Lal and defendant Nos. 1 and 2 were their legitimate sons as such upon the death of Kishan Lal, the entire property devolved upon his sons and his widow. Against the said judgment, when an appeal was preferred, the first appellate court upholding order of dismissal of suit on the ground of limitation dismissed the appeal. While so dismissing the appeal, the findings of the trial court on the question of marriage of Sundra Bai with Kishan Lal and legitimacy of their children were confirmed but on the question of adoption, the court observed that in whichever form the adoption might have taken place, the same was invalid as Goverdhan Das was given in adoption by his brother Kishan Lal and not by his father Moti Lal, who, according to the law prevalent at that time, was competent to give in adoption.

5. Against de

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2003 Supreme(SC) 903

Cases Referred (3)