Goswami Shree Vallabhalalji v. Goswamini Shree Mahalaxmi Bahuji Maharaj

Judgment

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 143 of 1956. 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. Dadachan,ii, · S, N.. Andley,. Rameshwar Nath and P, L. Vohra, fqr the respondents. 19111 Go;wami v,.LJ3b\3l1li. ., Go.twamini Siut1 l.lahalcxmi Bchuji :\faharaj f>3r :Jupla J L SUPRE~ counr ltEPORTS [1002) 1961. Se1ltcmber 13. The Judgment of the "'-... -~~ Court was deliverC'd Ly DAS GUPTA, J.-The appellant and the Second respondent arc both descendants ofVallnbhachary«Ji, a grnat Vaishnava teacher who flc.urished more than 400 years ago. v,.Jlalihadiaryaji loft his native place near Clmrnparany1i in South India, an<l c.m1ing to Gujarat and othl'r parts of India cstaliJi,herl shrines for the worship of Vishnu at se\•eml pbee.,.

His descendants bee,1me the priests and Shcbaits of Huch shrines and also of other shrine~ establi~hed thl'rcaft!'r. These came to be knawn as Ga.di~. While ea.ch of thc'n Ga.dis had a temple for tho wor8hip of Vi~hnu, considnaLJe properties, movable and immov:ihlo were acquired for th1·m from time to timl' by gifLorotherwi~c. One such shi·ino wJ.s e:;tn,bltsherl more than 100 yeitrs ago at Na<liad and n,bont the year 189!) A. D.: a descendant of Vallabhachary1~ji who on adoptibn took tho name of Annirnd1lhalalji llforlidharji became tho head of the Xadiad shrine and "'as thus possessed of tho movn,blc anrl immovablo properties appertaining to the Garli. This gentleman al:;o became by adoption head of :mother shrine known as the Moti Havcli at Jamnagar in the year l!Jl3 and then t<lOk a slightly different name Annirudhalalji l3rijeshji. Both these adoptions were in accordance with the Godr. Dattak custom c;f adoption which pr<waill'd among the members d the Vallabhacharya cummnnity.

Aniruddhalalji Murlidharji (alias Aniruddhalalji Brijcshji) died on December li, l!l3r. ielwin>: a widow !'IIahalakshmi Bahuji Maharaj, who is tlio first respondent before us. The question of n,dopting an h«ir to him assumed import.anco immediately on his death and it appears there' was some t~lk of :!dopting by tho Goda Dattak cnst,om one of the sons of the present appellrnt, who it is necessary to ml'ntion, was tho natural brother of Aniruddhalalji. The talks however proved fruitless and ultimately on Juno 1, 1946, I the seconq 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. It is no longer in dispute that the plaintiff would be the nearest heir on the 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 phintiff himself as well as his two sons were available for adoption the second respondent was adopted in preference to them. The second ground was th,lt under the Goda Dattak custom the wife's sister's husband cannot be validly adopted._ T~e third_ ground was that Aniruddhalalji GosWa11i Skree Vallabhala!ii Goswamini Shree M alialaxmi Bahuji M ahari!i Das Gupt~J· GosUXJmi --S!zree Vn/fal1hala!j1 G oslOOm in j Sh,,e Afaha/{tl.mi BQ~jj A! ah<VaJ Das Cupl:J ]. SUPREr.m COURT REPORTS [1962) had expressed his desiro in this matter of adoption~­ in 'ueh a manner that there was an implied prohibition by him from taking in ad9ption anybody except the present appellant or one of his sons.

The fin;t two gro•mds were raised in lSBUc No. 1' of the ID fosu.es that were framed by tho Trial Court while the third ground was raised in . Issue No. 12. These Issues aro in the following words:- Issue No 8 : Does the plaintiff provo tho custom that in Goda adoption :- ( i) a widow cannot adopt her sister's husband as a son to her husband ? (ii) the adoptcc should belong to the family of the adopter ? Issue No. 12: Docs the plaintiff prove that the Dcf<·nrlant ~o. I was prohibited by Annirucldhalalji from adopting in the God!\ form any one except the plaintiff or one of his sons ? It mav be mentioned that an Issue was framed aR regards the factum of adoption in Issuo 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. I and Defendant No. 2 had performed any core· monies or rites according to the Goda Dattak form of adoption or as required by Hindu Law.

This issue waH answered in the affirmative and the correctness of that answer has not been challenged before us. Tho Trial Court helcl that the plaintiff had not been a\>lc t.o establish t.hc alleged cust-0m for Goda Dattak that a widow could not arlopt her sister's husband as a son to her huijband nor that the adoptec should belong to the family of the adopter and accordingly answered Issue No. 8 in the negative. As regitnl~ IERuc :N"o. 12 the plaintiff relied on a letter which was marked Ex. 115, _.... __ ;i.part from bis own evidence and evidence of some of. his witnesses. Tho Trial Court accepted Defendant No. l's contention that this letter had 645, been inspired by the plaintiff himself and so no.· reliance 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. Accordingly, Issue No. 12 was also answBred 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 Mitaksh'lra governed the parties and so the adop· tion 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 Gosv.·ami families." Holding that the Defendant No.2's. adQption could not he held 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 Hif!h Court agreed with the Trial Court th'l.t the plaintiff had not been able to prove either that the wife's sister's husband was not eligible for adoption under the Goda Custom or that the son to be adop. ted must if pos> i ble come from the family of their ~---.. adoptive father. On the question whether there was an implied prohibition to adopt any body other than the plaintiff or his son~, also, they agreed with the ',J'rial Co~rt eyen thou?h the! were not ~pared fo G<Jswnmi Shiu Valla.kiilalji::. G(}sWmntni· Shrtt .M ak'a1a"1fli ~ Bahl/ii Mahot'!i Das a.;i,. J.' . Goswami Sltru V al/abho/olji OoswamVri Sim Mahoi...,; B""iii Maharaj DasGyla ]. (1962] say that the letter (Ex. 115) was written by the Defendant No. I under undue influence of the' plaintiff.

The learned Judges of the High Court refused to consicler the further question raised on behalf of the appellant that the adoption was invalid in the abscncll of consent of the Sapindas as the proper pleading on which such a question could havo been raised had not been made in the plaint and no issue had been framed. Tho High Court rcfusf.'d to frame an issue then, but gave time to the plaintiff to make an application for amendment of the plaint. An application for amenclnwnt was duly :Lade, Lut was rejectPd by the lc.irned judges who were of opinion that the application had not been made in good faith. The appe•l was dismissed with costs. Tho plailltiff has filed the present appeal against the decision of the High Court after obtaining special leave from this Court.

Tho appellant contends that the Courts below wore wrong in holding, firstly, t.hat a custom which barred the ad.-,ption of thJ wife's sister's husband in tbe Goda form of adoption ha.cl 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 oxcepting the plaintiff and one of his sons had not been established. It was 'llso urged that the High Court was \\Tong in refusing to Pntcrtain the ploa that tho adoptirn was invalid in tho absence of the consont of the husband's sa.pinclas and in any case totally wrong in allowing the application for ame~dment of the plaint seeking to raise such a plea. Brfore coming to the several grounds urgod on behalf of the appellant we have to consider a prt'liminary objf'ction raised on behalf of the respondf'nt.

Jt is urged that this app~al has b~come infructuong by reason of the operat10.n of .sect10n 14 of tjle ~indu Succes6iOn Aci-. I~ 1s said that as J-- ;i..-- 3S.C.R. admittedly respondent No. l, Mahalakshmi Bahuji Maharaj, was in possession of the properties in suit at the date of the commencement of the Hindu Succession Act, she became the full owner of the properties in question in case the adoption by her ofrespoqdent 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 Shaheit. It appears that a suit 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 to the 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 mAmbers 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 pri· mary object was mentioned by him to be that "a I'erson going in "Goda" adoption can perform "seva" (worship) etc., of the Tha korji (idol) and that tradition of "sewa" (worship etc.,) can Be con tinned". The second object mentioned b?' him is "that after the death of . t~<;> . l~l . GOsW(lmi Shre1 Val/a6ka/tJlji ,v . G~Swamini Shrt1 M ahalaxmi Bahqji M.~qi Das GuptqJ. INJ G>swnii IJo-11 Yalf11blw/alji GAJltlfllJtini Slu11 Af.A.tl&rtRi 11.J.iji MaJ..,~ /J•• cu;ta ]. [1962) person taking in adoption, the person going in adop· tion can perform his "shraddha" ceremonies etc." The third object according to him is "to continue the line of tho person taking in adoption." Other witnesses who have given evidence on this point hove snid more or less the samo thing.

It jg 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 accomplishing any of these objects would be ineligible for adoption. It is on this basis that it was urged that wife's sister's h1IAband's son was not eligible. The argument is that the wife's sister's husband would be unable t-0 perform the Shradha of the adoptive father because the adoptec would not cease to be the Shadu of the person to whom the adoption is made; it was further said that the adoptce would be incapable of performing the Sradh of the adop· tive maternal grand father as tho 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 makmal grand father.

The plaintiff's witness Anantkrishna Sastri-a Mahamahopadhyaya, made a statement that according to Dharmashastras a 'wife's sister's husband cann.ot he adopted. As authority for this propogition he relied on a passage in Dattak llimansa which prohibits tho adopti•on of a daughter'A son, a sister's son and a mother's sist<'r's son and adds thus:-"This clearly proves that a daughter's son and a mother's sister's Ron am (in this resjX'ct) equal to a sister's son. Thi~ is just proper because there is in these three, the same degree of (prohibi· t{ld) marriagcship (Viruddha Sam bandha ). " 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 Sam· ),,andhe.relationehipshoul\l be exctJ. tld fnm adoption (f'!'q!liil~11) ~•ft~). We have however held in Mrs. Abhiraj Kuer v. Debendra Singh( 1 ) in which judgment has been delivered to-day that this rule in Dattaka Mimansa against Viruddha Sambandha putra is only recommendatory and not mandatory.

A part 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 adop · tion of the wife's sister's husband in Goda Dattak form. On the question whether in Goda Dattak adop· tions the adoptee must if possible be from the family of the adoptive father, it is 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 Va!labhacharya family. Practically the only evidence given in sup· port 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.

His witness Lakshmi Shankar Upadhaya, who, as already stated, appears to have considerable experience of Goda Dattaka adoptions does not speak of any such custom. Even his witness Hari Krishna Virji Sastri who appears rather prrtial 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 thoro is such a custom we find defendant No. 2 giving three instances where boys from other families were adopted in Goda Dattak even though r---'ir 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 or 1958 decided op 15.9.6j, 111(1.l :. GQSu.wni Sine,. VaJ.J·++ilalji,, , IJ~.·J· Slw• M 11W4<fAiP Ba/udi JI ol>lltaj ]PIJ] GoOIJ/imj Shru ~a/I.Oba /4iji &osUJ411tini sn,,, Mnlto/axmi RaJuiii Mc7Waj Das. cuµoJ.

SUPltEME COURT REPORTS [1962) tgok 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 families crnn in the presence of mem hers in the adopth·e father's family. llut evon if it he correct to sar that the defendant has not established clearlv th:it members from other families were adopted en:n though mcmbcrR in the adoptive father's family ""'re williug to be adopted, the fact remains that. the plaintiff has not been able to estaLlish by eitlH'r any authoritatiYe texts or from the opinion of some person wl'll learned about the Goda D,ittaka customs that a custom cxists barring the adoption e>f mPmbers from oth(·r Vallabhacharya families if it were p»ssible to adopt members from the adoptive father"s family.

This brings us to tho coutention most vehemontly ul'gecl before u8 that the evidence establishes an implied prohibition by Annirudclhalalji of the adoption of any pPrso11 other than the plaintiff or one of his two sous. lkliance i6 plated first on tho letter Ex. 115. \Vear« inclined to agree wilh the High Court that this letter was written by Mahalakohrni Bahuji i\faharaj of hor own accord and caunot be brushed aside as having been WJ'itten under the influence of the plaintiff. All that tho lt>ttcr 8hows howe\·cr is that A1mirnddlw.lalji had expressed u desire that Gokul i\ath (who is plaintiff's eon) ahould be taken in adoption to him. Whilo a r<'asonablc readi11g of thiH letter would •how that Anniruddhalalji authori>t:d Mahalahhrni Bahuji Maharaj to make an adoption and that h•.! expressed his pt efen•nce for th" adoption of Gokul Nath, the letter does not show even remotely that Anniruddhalalji indir.ated any wish that no body except Gokul Nath should be adopted.

It iH intu-csting to remember in this connection that plaintiff's own ~E" in the i>Iaint is not tbiit Annirudqhalalji har~ 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 h<>s 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 plaintiff's witnesses who have spoken as regards the declaration by Anniruddhalalji of his wish in this matter of adoption h'1ve not stated that Anniruddhalalji said that only his brother's son should be adopted.

His witness Nateswarji the brother of Armiruddhalalji's first wife says that "during his last illness Anniruddhalalji had spoken in my presence and in the presence of Defendant No. 1 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 W<'S the same as his desire. Such a talk had taken place only once in my presence." Accepting that Nateshwarji has stated the full truth here his evidence docs not show anything more than was indicated in the 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 goos to the length of saying that a date was actually fixed '!ly 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 11nybody else that JW ·body oth~ 1~61. I ~i,s~i.;' ShT1t;Va/laYh4liz1ji v; . . Goswdtid1# Shr_t~ M a/ialaxml'· Bahujj Mahli.raj Das Gi4'ta J. • JPIJ Gollf-i a. .. rt.ildM/a/ji . v. G~iai Sliru M4""Jox..i ~iMaJtcrttj D.,c.,u J. SUPREME OOURT REPORTS [1962] than Bhaiya Rii.j 1 should be adopted. It is not possible in this st..ato of the ovidencc to accept a11 truo the plaintiff's uncorroborated testimony that Anniruddhaln.lji said to defendant No. Mahalakshmi Bahuji Maharaj that only the plaintiff's eon should be adopted. We arc thorcforc of opinion that the High Court is right in its conclusion that no impliod prohibition hy Anniruddhalalji of adoption of any· body other than tho plaintiff or his sons has boen proved.

Tho last argumQnt that the parties being govorned by the Madras School of l\[itakshara, tho adoption is invalid in the absenco of consent by the husband's sapindas must he rejected, for the dimple reason that the lotter Ex. l l!i and the evidence of the plaintiff's own witnesses justify tho conclusion that in his life time Anniruddhalalji authorised l'vlahalakshmi Bahuji Maharaj to make an adoption after his death-though at the same timo indicating his preference for one particular boy. The necessity of consont of tho husband's sapindas would arise if the Madras School of Mit:ikshara law was applicable-only where there was no authority from the husballd. In the presont caso there was authority from the hudband to adopt and so <'ven if tho rule of orthodox Dattak adoption was applicablo and Anniruddhalalji wa_s governed by the Madras School ofMitakshara the question of any consent ofhusb:md's s11.pindas does not ari;;c at all.

In tho vi<'w we have taken of this argument it is unnecessary for us to consider whether the High Court wa8 right in rejecting the application for amendment of the plaint that was made by tho ~laintiff. in order to induce the High Court to consider this very argu. ment. It is also not necessary for us to enter into the question on which som? evidence appears _to have been led though no issue wat1 framed, viz., w}j.llthllr Goda. Dattak adoption is a mere va.riaq~ a S.CJi. StlPR:lllME COURT R1ilPo:tt'l's 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 GOLI SATHIRAJU AND OTHERS (K. N. WANCHOO, K. c. DAS GUPTA, J. c. SHAH and RAGHUBAR DAYAL, JJ.)

Occupancy Rights-Ryot in possession before permanent Bettlement-Terms as to commencement of tenancy lost in antiquity-Presumption as lo melvaram and kudirnram.,--Right. of ryots in Z•imindaries-Madras Estates Land Act, 1908 (Mad. 1 of 1908), s. 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 alia, 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, int,er 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 sbow that the occupation of the lands 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. · Iield, that in cases in which a ryot's holding ·is ·not shown to have commenced oubsequent to the permanent settlement, the presumption is that Zamindar was only the holdet Giswa'mi Shru V •l/o!hal1lji Goswamini Shru .}[ahalaxmi B•lwji Maharaj Das Gupta J. Sepuml" 18.