1982 Supreme(Cal) 58

High Court Of Calcutta
Padma Khastgir
RANJIT KUMAR JAIN - Appellant
Versus
KAMAL KUMAR CHOWDHURY - Respondent
Suit 89  Of  1975
Decided On : 02/22/1982

The ceremonies of giving and taking are absolutely necessary in all cases of adoption. A formal ceremony of giving and taking is essential to validate the adoption. A mere recital in the deed itself that such a ceremony had taken place in the absence of either oral or documentary evidence to that effect is not sufficient. A certified copy of a document may be admitted in evidence under Section 57(5) of the Registration Act, without other proof than the Registrar's certificate of the correctness of the copy and shall be taken as a true copy. A certified copy of a registered will is admissible in evidence under Section 65 (f) of the Indian Evidence Act read with Section 57 of Registration Act.

Headnote:

DEED OF SETTLEMENT - VALIDITY - ADOPTION - PROOF - HINDU ADOPTIONS AND MAINTENANCE ACT, 1956 - CEREMONIES OF GIVING AND TAKING - CUSTOM - JAIN COMMUNITY - HINDU LAW - SECTION 74(2) OF THE EVIDENCE ACT - SECTION 65(A) OR (C) OF THE SAID ACT - SECONDARY EVIDENCE - CERTIFIED COPY OF THE DEED OF SETTLEMENT - PRESUMPTION OF REGULARITY - SECTION 114(C) OF THE EVIDENCE ACT - UNDUE INFLUENCE - PARDANASIN LADY - PROBATE - WILL - EFFECT.

Fact of the Case:

The plaintiff, Ranjit Rumar Jain, filed a suit against Kamal Kumar Chowdhury and Ratan Kumar Chowdhury for a declaration that the Registered Indenture of Settlement dated February 14, 1971 executed by Radha Debi (also known as Radha Rani Debi) since deceased, was valid and subsisting, for a declaration that the plaintiff being the sole Trustee of the said Trust was exclusively entitled to administer the premises No. 14/4, Sudhir Chatterjee Street, Calcutta as a Trust property, possession of the said premises and also for a declaration that the Wills dated 9th July, 1974 and 15th July, 1974, claimed to have been executed by the said Radha Rani Debi, since deceased, have no effect or bearing on the said premises. The defendants contended that the plaintiff was not the natural born son of Budhmull Jain or Budhmull Nahata and denied the factum and validity of the adoption that had been mentioned in the plaint. They also denied the factum and validity of the Deed of Adoption. They further contended that Radha Rani Debi was the sole and absolute owner of the premises No. 14/4, Sudhir Chatterjee Street, Calcutta and that the purported indenture of Settlement was caused to be executed as Radha Rani Debi did not execute any Indenture of Settlement out of her free will and volition, inasmuch as she did not have the knowledge or understanding or appraisal of the contents of the Deed of Settlement. It was further contended that the said Deed of Settlement was never intended to be acted upon, nor in fact, it was acted upon by the parties. The defendants denied that the plaintiff was the eldest son of Shew Karan Jain or that he acquired any right, title or interest in respect of the premises No. 14/4, Sudhir Chatterjee Street, Calcutta either on the strength of the Deed of Trust or otherwise. Radha Rani Debi was the sole and absolute owner of the said premises till 17th July, 1974, when she died, during her lifetime she exercised due control over the said premises and also exercised her right of ownership in respect of the said property.

Finding of the Court:

The Court held that the plaintiff failed to prove the adoption as pleaded in the plaint. The Court also held that the certified copy of the deed of settlement should be tendered in evidence. The Court further held that the defendant No. 1 failed to substantiate the case that the deed of settlement was not a valid document or that it was executed under undue influence. The Court also held that the deed of settlement was acted upon by Radha Rani Debi during her lifetime. The Court further held that the probate of the Will dated 15th July, 1974 was binding till it was revoked and/or set aside and till the question of authority of Radha Rani Debi to execute a will in respect of a property which was the subject-matter of the deed of settlement, was validly and properly decided in a properly constituted suit.

Issues: 1. (a) Was the plaintiff, in fact, adopted by Shew Karan Jain as his son as alleged in para 1 of the Plaint? (b) Was the said alleged adoption valid in law? 2. Is there any valid Deed of Settlement by Radha Rani Debi dated the 14th Feb. , 1971, as alleged in paras. 2 and 3 of the Plaint? 3. (a) Was the Will dated 15th July, 1974 probated, as alleged in para 6 of the amended Written Statement? (b) If so, what was the effect thereof? 4. To what relief, if any, is the plaintiff entitled?

Ratio Decidendi: 1. The ceremonies of giving and taking are absolutely necessary in all cases of adoption. 2. The Hindu Adoptions and Maintenance Act, 1956 came into effect on 21st of December 1956. Under those circumstances this particular adoption having taken place in the month of January 1956 was not governed by the provisions of the said Act. Under the circumstances the provisions under the Hindu Law were applicable in the instant case. 3. In the case of Jains, the giving and taking are essential but the religious ceremonies are not necessary. 4. A formal ceremony of giving and taking is essential to validate the adoption. 5. A mere recital in the deed itself that such a ceremony had taken place in the absence of either oral or documentary evidence to that effect is not sufficient. 6. Section 74(2) of the Evidence Act and Section 65(a) or (c) of the said act allow for the admission of secondary evidence in certain circumstances. 7. A certified copy of a document may be admitted in evidence under Section 57(5) of the Registration Act, without other proof than the Registrar's certificate of the correctness of the copy and shall be taken as a true copy. 8. A certified copy of a registered will is admissible in evidence under Section 65 (f) of the Indian Evidence Act read with Section 57 of Registration Act.

Final Decision: The suit was dismissed with costs.