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1915 Supreme(SC) 18
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
LORD SHAW OF DUNFERMLINE, SIR GEORGE FARWELL, SIR JOHN EDGE, AND MR. AMEER ALI.
BAL GANGADHAR TILAK - Appellant
Versus
SHRINIWAS PANDIT - Respondents
On Appeal from the High Court at Bombay.
Decided On : Jan. 21, 22, 25, 26, 27, 28, 29; March 26. 1915.
Solicitors for appellants:Downer & Johnson. Solicitors for first respondent:T. L. Wilson & Co Solicitor for second respondent: E. Dalgado.
In Hindu law, the ceremony of datta homam is not essential for a valid adoption if the adopted son belongs to the same gotra as the adoptive father. Additionally, witnesses must be confronted with specific parts of a document before being contradicted by it under the Indian Evidence Act.
Headnote:(A) Indian Evidence Act, 1872 - Sections 83 and 145 - Use of previous statements and criminal depositions - Evidence given in a criminal trial is relevant in subsequent proceedings only when the witness is dead, cannot be found, is incapable of giving evidence, or is kept out of the way - A witness may be cross-examined as to previous written statements, but if it is intended to contradict the witness by the writing, their attention must be called to those specific parts of the writing before it can be proved. (Paras 45, 52)
(B) Hindu Law - Adoption - Validity of adoption among the twice-born classes - Ceremony of datta homam (sacrificial burning of clarified butter) - Where the adopted son belongs to the same gotra as the adoptive father, the celebration of the ceremony of datta homam is not an essential legal requisite for the validity of the adoption. (Paras 61, 65)
(C) Law of Contracts - Fraud, Coercion, and Undue Influence - General allegations of fraud are insufficient to amount to an averment of fraud that a court ought to take notice of - Specific pleadings are required to bring litigation within a definite compass. (Paras 72, 74)
Facts of the case:
A widow, acting under the directions of her deceased husband's will and with the assistance of trustees, adopted a boy. The adoption was challenged on the grounds that the physical act of giving and taking did not occur, the religious ceremony of datta homam was omitted, and the widow was subjected to undue influence and fraud. The trial court upheld the adoption, but the High Court reversed the decision, finding that the adoption was not completed in fact and was the result of undue influence.
Findings of Court:
The evidence overwhelmingly proved the corporeal giving and taking of the child on the lap of the adoptive mother. The omission of datta homam did not invalidate the adoption because the child was of the same gotra as the adoptive father. There was no evidence of fraud or undue influence, and the trustees acted in good faith. The High Court erred by relying on criminal depositions and using documents to contradict witnesses without following the mandatory procedure under the Indian Evidence Act.
Issues: Whether the adoption was completed in fact through the act of giving and taking; whether the ceremony of datta homam was essential for a valid adoption when the child is of the same gotra as the adoptive father; and whether the adoption was void due to undue influence or fraud.
Ratio Decidendi: In Hindu law, the ceremony of datta homam is not a legal necessity for adoption if the adoptee and the adoptive father share the same gotra. Furthermore, under the Indian Evidence Act, a witness cannot be contradicted by a written document unless the specific portions used for contradiction are first shown to the witness during cross-examination.
Result: Appeal allowed, the decree of the High Court set aside, and the decree of the Subordinate Judge restored.
Appeal from a judgment and decree of the High Court (September 23, 1910) reversing a judgment and decree of the Subordinate Judge of Poona (July 31, 1906).
The suit was instituted by the appellants to establish the validity of the adoption of the fourth appellant, Jagannath Vasudeo, as the son of Vasudeo Harihar Pandit, deceased (known as Baba Maharaj), and to obtain ancillary declarations.
Baba Maharaj, who was a Brahman by caste, died on August 7, 1897, possessed of considerable ancestral property, and leaving a widow, Sakvarbai, then about sixteen years of age, and three daughters. By his will he appointed live named persons (the three first appellants and two others) as trustees to carry on the management of his estates after his death. The will provided that if his widow Sakvarbai did not give birth to a son, or if a son should be born but should be short-lived, then "with the vichare" (i.e., the advice or consent) "of the above-named gentlemen " (namely, the persons named as trustees) "a boy should be given as often as may be necessary in adoption on the lap of my wife in accordance with the shastras." One of the five named trustees declined to act, but the other four took over the management of the estates in accordance with the will.
The appellants, three of the trustees and Jagannath, by their plaint alleged that on July 27, 1901, the last named was duly given and received on the lap of Sakvarbai in adoption, and that she executed a deed of adoption and signed a letter to the boys father agreeing to receive him. The defendants were the widow, the remaining acting trustee, and the first respondent, a son subsequently adopted by Sakvarbai. The widow by her written statement denied the adoption and alleged that she was induced to sign the documents by the threats and coercion of the first two appellants. The other defendants adopted these defences.
A number of issues were settled, of which one was " whether the plaintiff No. 4 is the validly adopted son of Baba Maharaj." No issue was framed as to undue influence or coercion. The widow died before the trial, and the present second respondent, her daughter, was substituted for her.
The fourth appellant, the alleged adopted son, belonged to the gotra of the deceased Baba Maharaj.
The nature of the evidence, most of which was given on commission, appears from the judgment of their Lordships. The first and second appellants were examined and cross-examined, but no question was put to them as to the alleged threats or coercion, nor was this defence put forward at the trial.
The Subordinate Judge found on the evidence that the corporeal giving and taking of the fourth appellant in adoption was proved; he held that no religious ceremonies were legally necessary, since the boy was of the same gotra as his adoptive father and the adoption was intended to be complete without them.
The High Court (Chandavarkar and Heaton JJ.) reversed the decision of the Subordinate Judge, holding that there had not in fact been any giving and taking of the boy in adoption, and that in any case the adoption had been brought about by undue influence exercised upon the widow by the first and second appellants. The learned judges, therefore, did not find it necessary to consider the question as to whether the datta homam, or other religious ceremony, was essential to the validity of the adoption.
Sir Erle Richards, K.C., Sir William Garth, and Parikh, for the appellants. The finding of the Subordinate Judge that the boy was given and received on the lap of the widow was in accordance with the evidence. No doubt coercion or undue influence, if pleaded and proved, would be a defence Bayabai v. Bala . (( 1866) 7 Bomb. H. C. App. 1, p 1.) There was, however, no issue framed as to either coercion or undue influence, and the trustee appellants were not cross-examined to establish either of those defences. The undue influence found by the High Court was not pleaded, nor was it suggested at the trial
