$sck. SUPREME COURT REPORTS 441 GOSWAMI SHREE VALLABHALALJI v
GOSWAMINI SHREE MAHALAXMI BAHUJI MAHARAJ
(K. N. Wancnoo and K. C. Das Gupta, JJ.)
Adoption—Goda Daitak Customs—Wsdow’s sister's husband—If can be adopted as son.
The first respondent on the death of her husband who was a descendant of the famous Vaishnava teacher Vallabhacharyaji and was possessed of certain Devattar properties belong to the Thakur of which he was the Shebait, adopted her sister’s husband as ason under the Goda Dattak Custom of adoption which prevailed amongst the Vallabhacharya community. The appellant who was the own brother of the deceased adoptive father contended inter ulia that under the Goda Dattak custom a widow could not adopt her sister’s husband as a son to her husband, that the adoptee should belong to the family of the adopter and that the widow should obtain the consent of her husband’s sapindas for the adoption.
Held, that the rule in Dattaka Mimansa against the adoption of the son of a woman who could not be married because of Viruddha Samandha relationship is recommendatory and even if the limitation of the orthodox Dattak adoption apply to Goda adoption there is no bar to the adoption of the wife’s sister’s husband.
Mst. Abhiraj Kuer v. Devendra Singh, C.A. No. 379 of 1961 decided on 15-9-61, referred to.
In the present case it has not been proved that under the Goda Dattak customs a custom existed barring the adoption of members of other Vallabhachari families if it were possible to adupt members from the adoptive father’s family. Asin the present case there was authority from the husband
’ to adopt the question of the consent of the sapindas of the husband did not arise even if he was governed by the Madras
- School of Mitakshara.
Civin APPELLATE JURISDICTION: Civil Appeal No. 143 of 1956. Ce
Appeal by special leave from the judgment and decree dated September 23, 1952, of the Bom-
’ bay High Court in First Appeal No. 57 of 1949.
S. T. Desai and I. N. Shroff for the appellant. A.V. Viswanatha Sastri, J. B. Dadachanji,
. SN. Andley,, Rameshwar Nath and P. L. Vohra, for the respondents.
— Sepiemtar 13.
642 SUPREME COURT REPORTS (1962) 194! 1961. September 13. The Judgment of the *«*~
“e_
Goswami Court was delivered by Vatlabiaiali, . vy Das Gupta, J.—The appellant and the Second sn eiia; respondent are both descendants of Vallabhacharyaji,
Bohyi Mahara & great Vaishnava teacher who ficurished more
Dar cuple J than 400 years ago. Vallabhacharyaji left his native place near Champaranya in South India, and coming to Gujarat and other parts of India “> established shrines for the worship of Vishnu at several places. His descendants became the priests and Shebaits of such shrines and also of other shrines established thereafter. These came to be known as Gadis. While cach of these Gadis hada temple for tho worship of Vishnu, considerable properties, movable and immovable were acquired =» for them from time to time by gift or otherwise. One such shrino was established more than 100 years agoat Nadiad and about the year 1899 A. D.ra descendant of Vallabhacharyaji who on adoption took the name of Anniruddhalalji Murlidharji became the head of the Nadiad shrine and was thus possessed of the movable and immovable properties appertaining tothe Gadi. This gentleman also became by adoption head of another ~ shrine known as the Moti Haveli at Jamnagar in the year 1913 and then took a slightly different name Annirudhalalji Brijeshji. Both these adoptions ~ were in accordance with the Goda Dattak custom cf adoption which prevailed among the members cf the Vallabhacharya community. Aniruddhalalji Murlidharji (alias Aniruddhalalji Brijeshji) died on ** December 17, (935 leaving a widow Mahalakshmi Bahuji Maharaj, who is the first respondent before us.
‘Lhe question of adopting an heir to him assumed importance immediately on his death and it appears there was some talk of adopting by the Goda Dattak custom one of the sons of the present »— . appellent, who it is necessary to mention, was tho natural brother of Aniruddhalalji. The talks however proved fruitless and ultimately on June 1, 1946,
3.S.C.R. SUPREME COURT REPORTS 643 wr the second respondent who as already stated was also a descendant of Vallabhacharya was adopted. The present suit was brought by the appellant in respect of the Haveli and other properties left by Anniruddhalalji at Nadiad. In this he challenges the validity of the adoption of the second respondent by the first respondent, Mahalakshmi Bahuji Maharaj.
The main prayer in the suit is for a declaration that respondent No. 2 was not the legally adopted son of Aniruddhalalji and did not acquire any right or shares in his property by the alleged adoption. The other prayers included one for a declaration that he the appellant was the nearest heir of the deceased, that the first respondent had no other right in the property except as a Hindu widow, for an injunction restraining her from frittering away the property or any part thereof, for an order on her to produce the balance of the sale proceeds of Maharaja’s Bag which she had sold off and for an order on both these respondents to render accounts of the properties of Goswami Anniruddhalalji which might have come into their hands.
Itisno longer in dispute that the plaintiff would be the nearest heir onthe death of the widow if there has been no valid adoption of the second respondent to Aniruddhalalji. The appellant challenged the validity of the adoption on three main grounds. The first was that under the custom of the Vallabharcharya community under which Goda Dattak adoption is made, the adoptee (using that word to denote the boy taken in adoption) must be only from the family of the adoptive father if this be possible and in the present case even though the plaintiff himself as well as his two sons were available for adoption the second respondent was adopted in preference to them. The second ground was that under the Goda Dattak custom the wife’s sister’s husband cannot be validly adopted. The third ground was that Aniruddhalalji
Goswami Shree Vallabhalaljt Goswwamini Shree M ahalaxmi Bahaji M M aharaj
Das Gi Cipta J-
Gostoam: “Shree Vallabhalalp: nn Ae Goswamini Shree Mahalaxmi Bahuji Makara
Das Cupta J:
644 SUPREME COURT REPORTS [1962]
had expressed his desiro in this matter of adoption in such a manner that there was an implied prohibition by him from taking in adoption anybody except the present appellant or one of his sons.
The first two grounds were raised in Issue No. S of the 19 Issues that were framed by tho
Trial Court while the third ground was raised in .
Issue No. 12. These Issues are in the following words :—
Issue No 8: Does the plaintiff prove the custom that in Goda adoption :—
(i) a widow cannot adopt her sister's husband as a son to her husband ?
{ii} the adoptee should belong to the family of the adopter ?
Tssue No. 12: Does the plaintiff prove that the Defendant No. 1 was prohibited by Anniruddhalallji from adopting in the Goda form any one except the plaintiff or one of his sons ?
It may be mentioned that an Jssue was framed as regards the factum of adoption in Issue No. 6, viz., whether Defendant No. 2’s adoption is proved, in view of what was said in paragraph 14 of the plaint that ho was not aware whether Defendant No. 1 and Defendant No. 2 had performed any ceremonies or ritesaccording tothe Goda Dattak form of adoption or as required by Hindu Law. This issue was answered in the affirmative and the correctness of that answer has not been challenged before us.
The Trial Court held that the plaintiff had not been able to establish the alleged custom for Goda Dattak that a widow could not adopt her sister’s husband as a son to her husband nor tbat the adoptee should belong to the family of the adopter and accordingly answered Issue No. 8 in the negative. As regards Iesue No. 12 the plaintiff relied on a letter which was marked Ex. 115, apart from his own evidence and evidence of some of his witnesses. The Trial Court accepted Defendant No. I’s contention that this letter had
Si ~e ae.
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83S.6.R. SUPREMECOURT REPORTS 6455 been inspired by the plaintiff himself and so noreliance could be placed on it. The oral testimony ~ given by the plaintiff and other witnesses in support of the story that Aniruddhalalji had in his life time given certain directions in the matter of adoption of a son to him was also found not reliable. Accor-. dingly, Issue No. 12 was also answered in the negative.
One other argument addressed to the Trial Court was that Defendant No. 1 had not obtained the consent of her husband’s sapindas for this adoption and so under the Madras School of Mitakshara Law, which it is said governed the parties, the adoption was invalid. The Trial. Court considered this argument even though the question whether the Madras School of Mitakshara governedthe parties and so the adoption was invalid without the consent of the husband’s | sapindas had not been specifically raised in the pleadings nor had any issue been framed on this. The learned Judge however rejected the argument, being of opinion that ‘the ordinary law of adoption: which puts restrictions on the widow’s right to adopt in Madras cannot be taken to be prevailing in the case of customary adoption in the Goda form by a widow in the Goswami families.” -
Holding that the Defendant No.2’s adoption could not be heid to be invalid the Trial Court: dismissed the suit with costs. “
The plaintiff's appeal to the High Court’ of Bombay met a similar fate. The learned Judges of High Court agreed with the Trial Court that the plaintiff had not been able to prove either that thé wife’s sister’s husband was not eligible for adoption under the Goda Custom or that the son to be adopted must if possible come from the family of their adoptive father. On the question whether there was an implied prohibition to adopt anybody other than the plaintiff or his sons, also, they agreed with the Trial Court even though they were not. prepared to
196.
_ Goswami Shree. Vallabhalalji < v.- Goswamini - Shree M akalaxmi » Bahujt Makeraj~ Das Gupis F- .
Goswami Shrea Vallabhalalji ¥. Goswemint Stree Mahalaxmi Behgi Maharaj
Das Gupta 7.
646 SUPREME COURT. REPORTS [ 1962]
say that the letter (Ex. 115) was written by the Defendant No. ] under undue influence of the plaintiff.
The learned Judges of the High Court refused to consider the further question raised on behalf of the appellant that the adoption was invalid in the absencv of consent of the Sapindas as the proper pleading on which such a question could have been raised had not been made in the plaint and no issue had been framed. The High Court refused to frame an issue then, but gave time to the plaintiff to make an application for amendment of the plaint. An application for amendment was duly nade, but was rejected by the learned judges who were of opinion that the application had not been made in good faith. The appeil was dismissed with costs.
Tho plaintiff has filed the present appeal against the decision of the High Court after obtaining special leave from this Court.
The appellant contends that the Courts below ‘were wrong in holding, firstly, that a custom which barred the adoption of the wife's sister's husband in the Goda form of adoption had not been proved; secondly that a custom that if possible the adoptee must be from the family of the adoptive father had not been proved; and lastly that the alleged implied prohibition against adopting anybody excepting the plaintiff and one of his sons had not been established,
It was also urged that the High Court was wrong in refusing to entertain the plea that ths adopticn was invalid in the absence of the consent of the husband’s sapindas and in any case totally wrong in allowing the application for amendment of the plaint seeking to raise such a plea.
Before coming to the several grounds urged on behalf of the appellant we have to consider a preliminary objection raised on behalf of the respondent. Jt is urged that this appeal has become infructuons by reason of the operation of section 14 of the Hindu Succession Act. It is said that as
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«“
38.0.R. SUPREMECOURT REPORTS 647 admittedly respondent No.1, Mahalakshmi Bahuji Maharaj, was in possession of the properties in suit at the date ofthe commencement of the Hindu Succession Act, she became the full owner of the properties in question incase the adoption by her of respondent No. 2 is invalid. There may be some force in this argument if the properties in question are the private secular properties of Anniruddhalalji. The position may well however be different if these properties were the Devattar properties belonging to the Thakur of which Anniruddhalalji was a Shabeit.
It appears that asuit has actually been brought by certain Vaisnavas seeking a declaration that these properties are all Devattar—properties of the Thakur. In view of this position we are of opinion that it would not proper for us to decide in the present case whether under section 14 of the Hindu Succession Act Defendant No. 1 had become the full owner of the properties in suit if the adoption by her was invalid. We shall therefore decide this appeal on merits leaving it open to the Ist respondent to pursue her claim under section 14 of the Hindu Succession Act if that becomes necessary.
Coming now tothe merits of the appeal it is necessary to consider first the question of the alleged limitation on the power to adopt by Goda practice as regards the wife’s sister’s husband or a member from’ another Vallabhacharya family even though members of the adoptive father’s family be available. It will be helpful to consider in this connection first the objects of Goda adoption. These objects have been mentioned by plaintiff's own witness Chandrashankar Laxmishankar Upadhyaya who appears to have a fair amount of knowledge of Goda Dattaka adoptions, to be three fold. The primary object was mentioned by him to be that “a person going in “Goda” adoption can perform “geva’” (worship) etc., of the Thakorji (idol) and that tradition of “sewa” (worship ete.,) can be continued”. The second object mentioned by him is “that after the death of. the
. 1961
“Goswami Shree Vallabhalalji Goswamini Shree Mahalaxmi Bahuji Maharaj _ Das Gupta 7.
Gaswami Shree Vallabhatalji ¥. Gasveonini Shree Mahalo: Bakaji Maharaj Dae Gupta F.
648 SUPREME COURT REPORTS [1962]
person taking in adoption, the person going in adoption can perform his ‘“shraddha” ceremonies etc.” The third object according to him is “to continue the line of the person taking in adoption.” Other witnesses who have given evidence on this point have said more or lesa the samo thing. It is obvious that if the above be the objects of Goda adoption it must be implicit in the nature of Goda. adoption that anybody who would be incapable of accom. plishing any of these objects would be ineligible for adoption. It is on this basis that it was urged that wife’s sister's husband’s son was not eligible. The argument is that the wife’s sister's husband would be unable to perform the Shradha of the adoptive father because the adoptee would not cease to be the Shadu of the person to whom the adoption is made; it was further said that the adoptee would be incapable of performing the Sradh of the adoptive maternal grand father as the latter would be the adoptce’s father-in-law.
Unfortunately however for the plaintiff’s case his witnesses were unable to quote any authority except their own ipse dixit for this proposition that the adoptee would be incapable of performing the Sradh of his adoptive father or adoptee maternal grand father. The plaintiff’s witness Anantkrishna Sastri—a Mahamahopadhyaya, made a statement that according to Dharmashastras a ‘wife’s sister’s husband cannot he adopted. As authority for this proposition herelied on a passage in Dattak Mimansa which prohibits the adoption of a daughter's son, a sister’s son anda mother’s sister's son and adds thus:—‘“‘This clearly proves that a daughter’s son and a mother’s sistor’s son are (in this respect) equal to a sister's son. This is just proper because there is in these three, the same degree of (prohibited) marriageship (Viruddha Sambandha).”
It is true that Dattak Mimansa has in a later passage gone further and said that. son of a woman who could not be married because of Virudha Sambandha relationship should be exce}.tcd frcm adoption
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Ta ws.
4)
38.0.R. SUPREME COURT REPORTS 649
(faegararqqat atta). We have however held in Mrs. Abhiraj Kuer v. Debendra Singh(+) in which judgment has been delivered to-day that this rule in Dattaka Mimansa against Viruddha Sambandha putra is only recommendatory and not mandatory. Apart from that it is difficult to see how the wife’s sister’s husband can be considered to be Viruddha- Sambandha-putra. It is thus clear that even if the limitations of the orthodox Dattak adoption apply to Goda adoption there is no bar to the adoption of the wife’s sister’s husband.
On the materials on the record we are also satisfied that there is no custom barring the adoption of the wife’s sister’s husband in Goda Dattak form.
On the question whether in Goda Dattak adoptions the adoptee must if possible be from the family of the adoptive father, itis important to notice that the several objects for which Goda Dattak adoptions are made may well be satisfied even if the adoptee be from some other Vallabhacharya family. Practically the only evidence given in support of the case that there is a custom as alleged. that if possible the adoptee must be from the adoptive father’s family is by the plaintiff himself. Hig witness Lakshmi Shankar Upadhaya, who, as already stated, appears to have considerable ex- perience of Goda Dattaka adoptions does not speak.
of any such custom. Even his witness Hari Krishna Virji Sastri who appears rather pertial to him—it may be mentioned that he admits having read even the plaint on being sent for by the plaintiff—does not speak of any such custom. Against the plaintiff's own evidence that thore is such a custom we find defendant No. 2 giving three instances where boys from other families were adopted in Goda Dattak even though members in the adoptive father’s family were present. It is true that the evidence does not show whether such adoptions from other family (1) C.A, No. 379 of 1958 decided op 15.9.6},
ESOL.
Bahuji . Maharaj
J961
Goswami Shree Vallabhalalji v. Goswamini Shree Moahalaxmi Rahuji + Maharaj} Das. Gupta 7.
650 SUPREME COURT REPORTS {1962} took place only after members in the adoptive father’s family who might have been available for adoption declined to be adopted. It will be unreasonable however to expect such evidence as to the exact circumstances under which adoptions were made from other familics cven in the presence of members inthe adoptive father’s family. But evon if it be correct to say that the defendant has not established clearly that members from other families were adopted even though members in the adoptive father’s family were willing to be adopted, the fact remains that the plaintiff has not been able to establish by either any authoritative texts or from the opinion of some person well learned about the Goda Dattaka customs that a custom exists barring the adoption of members from other Vallabhacharya families if it were possible to adopt members from the adoptive father’s family.
This brings us to the contention most vehemently urged before us that the evidence establishes an implied prohibition by Anniruddhalalji of the adoption of any person other than the plaintiff or one of his two sous. Reliance is placed first on the letter Ex. 115. We are inclined to agree with the High Court that this Ietter was written by Mahalakshmi Bahuji Maharaj of her own accord and cannot be brushed aside as having been written under the influence of the plaintiff. All that the letter shows however is that Anniruddhalalji had expressed a desire that Gokul Nath (who is plainuiff’s son) should be taken in adoption to him. While a reasonable reading of this letter would show that Anniruddhalalji authorised Mahalakshmi Bahuji Maharaj to make an adoption and that he expressed his preference for the adoption of Gokul Nath, the letter doesnot show evenremotely that Anniruddhalalji indicated any wish that no body except Gokul Nath should be adopted. It is intcresting to remember in this connection that plaintiff's own case in the plaint is not that Anniruddhalalji had a
38.0.R. SUPREME COURT REPORTS 651 declared any wish that nobody other than Gokul Nath should be adopted but that his desire was that ‘no body other than the plaintiff or any one of his sons should be adopted.” The plaintiff in. his own testimony has no doubt said that Anniruddhalalji. after asking the plaintiff to give his eldest son in Goda adoption told Mahalakshmi Bahuji Maharaj that “only his brother’s son should be adopted”. If this was true it is difficult to understand why the plaintiff tried to make a case in the plaint that Anniruddhalalji had declared a wish that nobody except the plaintiff himself or one of his sons should be adopted. The plaintiffs witnesses who have spoken as regards the declaration by Anniruddhalalji of his wish in this matter of adoption have not stated that Anniruddhalalji said that only his brother's son should be adopted. His witness Nateswarji the brother of Anniruddhalalji’s first wife. says that “during his last illness Anniruddhalalji had spoken in my presence and in the presence of Defendant No. | that his desire was to adopt Bhaiya Raja and he had inquired of Defendant No. 1 what her desire was’. Defendant No. 1 had replied that her desire wes the same as his desire. Such a talk had taken place only once in my presence.” Accepting that Nateshwarjt has stated the full truth here his evidence docs not show anything more than was indicated inthe letter Ex. 115 itself and does not show that Defendant No. 1 prohibited even by implication the adoption of anybody else excepting Bhaiya Raja (the plaintiff's son). The plaintiff's witness Gobardhan stated in his evidence: Anniruddhalalji was speaking to all persons in touch with him that he wanted to take Bhaiya Raja in “Goda Dattak” and later that “he was spoken to by Maharaj that he wanted to take Bhaiya Raja in adoption”. Even this witness who gocs to the length of saying that a date was actually fixed by Anniruddhalalji for the adoption of Bhaiya Raja—a story which none of the other witnesses give—is not prepared to say that Anniruddhalalji said to Defendant No, 1 or to anybody else that no body other
Shree; Vatlabhalalji Coswaming - Shrés Mahalaxmi-
Das Giipta’J..'
198].
Goswami - Bbvee Vollabhalalji oy. Goswamini Shree Mahnlaxmi Bihaji Mahergj Das Gupte J.
652. SUPREME COURT REPORTS [1962]
than Bhaiya Raji should be adopted. It is not possible in this state of the evidence to accept as truo the plaintiff's uncorroborated testimony that Anniruddhalalji said to defondant No. 1, Mahalakshmi Bahuji Maharaj that only the plaintiff's son should be adopted.
We are therefore of opinion that the High Court is right in its conclusion that no implied prohibition by Anniruddhalalji of adoption of anybody other than the plaintiff or his sons has been proved.
The last argument that the parties being governed by the Madras School of Mitakshara, the adoption is invalid in the absence of consent by the husband's sapindas must be rejected, for the simple reason that the letter Ex. 115 and the evidence of the plaintiff's own witnesses justify the conclusion that in his life time Anniruddhalalji authorised
" Mahalakshmi Bahuji Maharaj to make an adoption after his death—though at the same time indicating his preference for one particular boy. The necessity of consent of the husband’s sapindas would arise if the Madras School of Mitakshara law was applicable—only where there was no authority from tbe husband.
In the presont case there was authority from the husband to adopt and so cven if the rule of orthodox Dattak adoption was applicable and Anniruddhalalji was governed by the Madras Schoo} of Mitakshara the question of any consent of husband’s sapindas does not arise at all. In tho view we have taken of this argument it is unnecessary for us to consider whether the High Court was right in rejecting the application for amendment of the plaint that was made by the plaintiff in order to induce the High Court to consider this very argument. It is also not necessary for us to enter into the question on which some evidence appears to have been led though no issue was framed, viz., whether Goda Dattak adoption isa mere variant
PS semanas
$6.0.R. SUPREME COURT REPORTS 635 of the orthodox Dattak adoption or an affiliation altogether different from Dattak adoption. We therefore express no opinion on this question. The appeal is dismissed with costs. Appeal dismissed.
SUNKAVILLI SURANNA AND OTHERS v. GOLI SATHIRAJU AND OTHERS
(K. N. Wancuoo, K. C. Das Gupta, J. C. SuaH and RaquuspaR Dayat, JJ.)
Occupancy Rights—Ryot in possession before permanent settlement—Terms as to commencement of tenancy lost in antiquity—Presumption as to melvaram and kudivaram—Rights of ryots in Zamindaries—Madras Estates Land Act, 1908 (Mad. I of 1908), 8. 6.
The lands in question which were within the permanently settled Zamindari in the then Presidency of Madras, belonged to T who, during his lifetime, was cultivating the lands. He died in 1885 leaving behind, inter aha, three daughters. After the death of the three daughters, the last having died in 1935, the sons of one of them instituted a suit against the descendants of the other two for partition and separate possession of a third share, tnler alia in the lands in question on the footing that T owned occupancy rights in the lands. The suit was resisted on the plea that T had no proprietary right in the lands, that he was only an annual tenant of the Zamindar, that after his death the lands were held on similar tenure by different members by his family and that occupancy rights were acquired by those members of his family who were in possession of the lands when the Madras Estates Land Act, 1908, came into force in 1908. There was no evidence to show that the occupation of the Jands by T commenced under the Zamindar, nor was there any evidence as to the terms on which he or his predecessors were inducted on the lands, the commencement of the tenancy and the terms thereof being lost in antiquity, but he and his descendants were proved to have continued in possession of the lands uninterruptedly till the enactment of the Madras Estates Land Act, 1908. ° ~
Heid, that in cases in which a ryot’s holding -is :not shown to have commenced subsequent to the permanent settlement, the presumption is that Zamindar was only the holder
Gesmami Shree Vallathalalji ¥.
_ Goswamini Shree Mahalavme Behuji Maharaj
Das Gupta F.
Septemler 18,