JUDGMENT Sunil Ambwani, J.
1. These two second appeals arise out of common judgment dated 17.12.1979 in Civil Appeal No. 30 of 1979 and 36 of 1979 (cross-appeal) against the judgment and decree dated 2.1.1979 passed by 4th Munsif, Jhansi dismissing suit Nos. 155 of 1971 and 7 of 1971, by judgment dated 2.1.1979.
2. The plaintiff Sita Ram filed suit No. 155 of 1971 for ejectment of defendant Shanker Lal from the disputed house and for damages with the allegations that he had allowed the defendant to occupy a room in the house as licensee for his services. The licence was revoked but he did not vacate the disputed portion.
3. The defendant Shanker Lal filed a written statement and pleaded that he was adopted by the plaintiff Sita Ram in 1946 and since then he is living in the disputed house as a member of the plaintiffs family and has become co-owner of the disputed house. His wife and sons are also living with him in the house and that their occupation is not confined to only one room.
4. The other suit No. 7 of 1971 was filed by the plaintiff Sita Ram for permanent in junction restraining defendant Shanker Lal from interfering in his use of disputed house and common passage from the paw and chowk of the disputed house with allegations that he had kept the defendant as licensee in a room. in this suit also the defendant Shanker Lal pleaded that he was the adopted son of the plaintiff and was living in the whole of the disputed house as son and co-owner, and as member of joint Hindu family property with the plaintiff. The plaintiff has kept one Smt. Shakuntla, a widow and that is how the dispute started between them. The suit was filed with false allegations.
5. The trial court held that the defendant Shanker Lal is not the adopted son of the plaintiff Sita Ram, Sita Ram is the exclusive owner of the house. It is not his ancestral property. The defendant is plaintiffs licensee. A valid notice of termination of defendant's licence was not served and thus the defendant Shanker Lal cannot be ejected. The suit for ejectment was dismissed. The suit for permanent in junction, however. restraining the defendant from interfering in plaintiffs use of common paur and chowk was decreed.
6. The appellate court after assessment of oral and documentary evidence held that defendant Shanker Lal is the adopted son of plaintiff Sita Ram. The plaintiff Sita Ram's wife had died about 30 years ago. He had only one daughter from his first wife. Sita Ram is 'bania' by caste and is doing business. in such families son is an asset. Now since a son is born to the plaintiff from Shakuntala, his second wife, he wants to disinherit the defendant. The appellate court held that after both the parties led evidence, the burden of proof loses significance and that the plaintiffs evidence establishes that the defendant was living in his house and was doing business with him for last 7 or 8 years before filing of the suit.
7. The appellate court relied upon the copy of the written statement filed by the plaintiff Sita Ram in an ejectment suit No. 1236 of 1968 in which the plaintiff had initially stated that Shanker Lal was his adopted son. The written statement, however, was later on amended, after the defendant Shanker Lal filed a partition suit and by this amendment, allowed by the Court, Shri Sita Ram pleaded that Shri Shanker Lal was living with him, 'like an adopted son'. The appellate court further found that in the summons issued by the Court in a criminal case initiated by the plaintiff's second wife Shri Shanker Lal accepted the summons, which described him as son of Sita Ram, and that Sita Ram could not explain as to why he had described Shanker Lal as his son.
8. The appellate court also relied upon the photographs taken about 30 years ago in which Shanker Lal as a child was present on ceremonial functions in the family and inferred that the presence of the defendant as a child in the family in the photographs, demonstrated that Shanker Lal was living with plaintiff in plaintiffs house in Jhansi city, for at least 20 years before filing of the suit. Shanker Lal was married at the age of 18 years and it was admitted by P.W. 2 that he started sitting at the shop when he was only 12 or 14 years of age.
9. The appellate court further found that the plaintiff has nowhere given the description of the room in which the defendant Shanker Lal was allowed to live as licensee. On these findings it was held that Shanker Lal is the adopted son of plaintiff Sita Ram, and while setting aside the findings of the trial court the Civil Appeal No. 36 of 1979, was allowed and both the suits of plaintiff Sita Ram were dismissed with costs.
10. Shri S.M. Dayal, learned Counsel for the appellants submits that adoption in Hindu law has a religious significance. It is primarily a religious act in tended to confer spiritual benefits on the adopter. The formalities for adoption, therefore, have to be strictly construed before recording findings of valid adoption. He further submits that the appellate court has also erred in law in recording findings on the claim of easementary right over the passage.
11. The Court at the time of admission framed the following substantial question of law:
The substantial questions of law involved in the case are whether the findings of the lower appellate court that the defendant Shanker Lal is the adopted son of the plaintiff Sita Ram and that the house in suit was not the self acquired property of the plaintiff are vitiated in law?
12. The oral evidence of Shri Shanker Lal claiming to be adopted son of Shri Sita Ram on the fact of adoption is in consistent. Shri Shanker Lal appeared as D.W. 1 and stated that some agreement may have been executed by his parents with Sita Ram (his adoptive father), and then stated that agreement must have been executed after the adoption. He stated that he never enquired about any deed of adoption from his mother and, cannot give the date, time and year of the adoption. D.W. 2 stated that the adoption took place in the evening at 6.00-7.00 p.m. The panchayat made some record of the adoption by Sita Ram. The panchayat were given 101 glasses by Sita Ram. D.W. 3 stated that no written document was executed in his presence, and D.W. 4 stated that the panchayat keeps a record of adoption. He had come to know that some record was prepared. The panchayat also keeps a record about the glasses given to the panchayat for adoption. The appellate court had reappraised the evidence. It has set aside the finding of the trial court and held that adoption was proved. These findings, however, were recorded only on the basis that the defendant was living with the plaintiff, and was sitting on the shop for last 7-8 yeaRs. There were some family photographs in which Shri Shanker Lal as child was present in the family. in the written statement in the partition suit filed by Shanker Lal Shri Sita Ram had admitted that the defendant was his adopted son but later on amended the same and stated that he was living like adopted son.
13. There is no presumption in law with regard to a valid adoption. in this case suit was filed in 1971 in which the defence was set up regarding adoption which takes the allegations of adoption prior to enforcement of the amendment of Section 17(3) of the Registration Act, 1908, as amended by U.P. Act No. 57 of 1976 (w.e.f. 1.1.1977) after which a valid adoption can only be evidenced by executing and registering an adoption deed. The law of adoption, however, in Hindus was fairly well settled. The adoption changes the normal natural course of succession and therefore, the Courts have to be extremely vigilant to guard against the schemers, who indulge in unscrupulous practices for grabbing the property. If there are any suspicious circumstances, such as in the case of the propounder of the Will is obliged to dispel the climate of suspicion, the burden is upon the person, who claims to be adopted to dispel the same beyond reasonable doubt. in Rahasa Pandianl (Dead) by L.Rs. and Ors. v. Gokulananda Panda and Ors. , it was held where the adoption claimed on the basis of oral evidence, was not supported by registered document, or any other evidence of a clinching nature, and if there exist suspicious circumstances, the same should be explained to the satisfaction and the conscience of the Court by the party contending that there was valid adoption.
14. in Sootrugun v. Sabitra AIR 1916 PC 81 and Diwakar Rao v. Chandan Lal Rao AIR 1931 PC 84 followed in Kishori Lal v. Mt. Chaltibai , the Supreme Court held that it is necessary that the evidence to support adoption should be such that it is free from all suspicion of fraud and so consistent and probable as to leave no occasion for doubting its truth.
15. in the present case, it is admitted that the adoption deed was not executed. The date, month or even the year of adoption was not given by the defendant. The evidences with regard to ceremonies of adoption was wholly in sufficient and in consistent and the witnesses varied in the statement on the fact of performance of religious ceremonies of giving and taking of the child by the natural and adoptive parents. The custom in the 'Agrawal' community, in which glasses are given to the panchayat and the record is kept for such distribution, was not proved by summoning the panchayat register. The mother of Shri Shanker Lal claiming to be adopted son of Sita Ram was alive. She was the most important person to have deposed and proved the valid adoption. She did not enter the witness box to prove that she and her husband had given Shanker Lal to Sita Ram in adoption. The courts below should have drawn adverse inference on this account. The adoption as such was not proved. The findings of the appellate court based on some old family photographs and the fact of twenty years of living in the house and sitting at the business place, were wholly in sufficient to prove the adoption. The alleged admission in written statement was clarified by amendment allowed by the Court.
16. The substantial question of law is as such decided in favour of Shri Sita Ram, the plaintiff-appellant. It is held that the defendant Shanker Lal failed to prove that he was adopted in the family of plaintiff--Sita Ram. He is as such not entitled to succeed in his defence to be the co-owner of the house with Sita Ram.
17. The possession of the defendant of the room in the house was with the permission of Shri Sita Ram. He was at best a licensee, as no tenancy was established nor was pleaded by the defendant Shanker Lal, who claimed to be adopted son and a right to live in the house, in that capacity. The findings that a valid notice was not given for revoking the licence overlooks the legal position that such revocation can also be made or inferred by making averment in the written statement. The defendant Shanker Lal had no right to live in the house. in this case the trial court found on issue No. 3 that a notice (paper No. 10A) was sent by the plaintiff Sita Ram to defendant through post, which was returned with the remarks that vendors' name was wrongly written. The defendant argued that plaintiffs notice was never received. He did not summon the postman, who had given the remarks and thus it is held that notice was improperly refused and shall be deemed to be served.
18. Both the second appeals are, consequently, allowed. The judgment of the appellate court dated 17.12.1979 dismissing the Civil Appeal No. 30 of 1979 and allowing Civil Appeal No. 36 of 1979 are set aside. The Judgment of the trial court dismissing the suit for ejectment of the defendant being suit No. 155 of 1971 is also set aside. Both the suits filed by the plaintiff Sita Ram for decree of permanent in junction restraining the defendant from peaceful possession and use of rasta from paur and chowk, as well as the suit for ejectment of defendant and for possession are decreed with costs against the defendant Shri Shanker Lal. Shri Shanker Lal is illegally occupying the premises since 1971. He is not held to be adopted son and as such he had no right to hold on with the possession after the suit for ejectment was filed. He has occupied the house for 35 years and is liable to pay damages for use and occupation to the plaintiff, quantified reasonably at Rs. 1,000 per year with interest of 6% per annum, which shall be paid by him to the plaintiffs. The costs are quantified of Rs. 50,000 and are also decreed against the defendant, Shanker Lal.