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TMI Blog1958 (12) TMI 37X X X X Extracts X X X X X X X X Extracts X X X X ..... the purpose of this judgment are these: Badrinarayan and Lakshminarayan were two brothers the former who was elder was carrying on business at Raipur and the latter who was younger carried on business in the ancestral village named Tirora where it is stated Badrinarayan also was doing some business. Lakshminarayans first wife died in 1919 leaving a son and a daughter. In 1922 Lakshminarayan married the respondent Mst. Chaltibai. His son died sometime after this marriage and therefore the only remaining child of Lakshminarayan was the daughter Mst. Jamnabai who was married to one Chotteylal. On January 6, 1936, Lakshminarayan died of a heart disease leaving his estate which is given in schs. B, C and D and is valued at about ₹ 30,000. Although the plaintiff Chaltibai, now respondent, had alleged that Lakshminarayan died suddenly and did not suffer from any heart disease previous to his death, the appellant pleaded that Lakshminarayan developed heart trouble in 1934. He also pleaded that because of this heart trouble Lakshminarayan became despaired of begetting a son and therefore adopted in Jaisth (May-June) 1935 the appellant Kishorilal then aged 13 years who was the youn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o his death, a fact which the respondent Chaltibai denied in her plaint. On these pleadings the court framed four issues and the two relevant issues for the purpose of this appeal are : (1) Did the deceased Lakshminarayan validly adopt the defendant No. 2 in the bright fortnight of Jyestha (June), 1935 A. D. ? (b) Was the adoption valid according to law ? (2) Had the plaintiff all along recognised the adoption as valid and legal and had she been treating defendant No. 2 as Lakshminarayan's son all along ? (b) If so, result ? The trial court dismissed the suit. It held the adoption proved but found against the appellant on the question of estoppel. The High Court on appeal reversed the finding as to the factum of adoption but upheld the finding on the question of estoppel. It was of the opinion that the respondent was not estopped on account of any misrepresentation made by her and that there was no such conduct on her part which deprived her of her right of bringing the present suit and that both parties knew that there was no adoption in fact. The appeal was therefore allowed. The defendant Kishorilal has brought this appeal to this Court under a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... but of Lakshminarayan who put a tilak on the appellant's forehead and tied a turban on his head. This was followed by distribution of pansupari to the persons assembled who were Narasingdas and Shankarlal who were from outside Tirora, Raman and Jivan Singh who were servants of Lakshminarayan, Chhatarpatti a neighbour and Bhaiyalal who has not been examined and there was also present Mohanlal a real brother of the appellant. Some other persons were also present by the appellant but they are not witnesses in the case and Badrinarayan and Mohanlal did not mention their presence. No religious ceremony was performed and there was no priest though witness Narsingdas stated that a priest was present at the adoption ceremony and ganesh puja was performed. The evidence also shows that no invitations were sent to the brotherhood, friends or relations and besides the persons mentioned above no one else was present and thus no publicity was given to the adoption. None of the relations of the respondent were invited or were present although she had brothers and sisters and they were married. Even the respondent Chaltibai was not present at the ceremony of adoption. It is stated that she wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... counts was emphasised by the Privy Council in Sootrugun v. Sabitra, (1834) 2 Knapp. 287 ; in Diwakar Rao v. Chandanlal Rao , (1916) I.L.R. 44 Calcutta 201 (P.C.) ; in Kishorilal v. Chunilal, (1908) 36 I.A. 9; in Lal Kunwar v. Charanji Lal, (1909) 37 I.A. 1, 7 and in Padamlal v. Fakira Debya, A.I.R. 193, (P.C.) 84. The oral evidence of witnesses deposing to the factum of adoption is both insufficient and contradictory. Beyond their being agreed on the question of taking the appellant in adoption by Lakshminarayan the witnesses are not in accord as to the details of the adoption or as to the ceremonies or as to the usual feast following it. The giving of presents is the only detail on which they are agreed, they all deposed that no presents were given. As to what happened in regard to the taking of the appellant in her lap by the respondent after the death of Lakshminarayan the witnesses are not in accord. There is disagreement as to its date how it came about and why. The adoption during the lifetime of Lakshminarayan is contradicted by a document dated January 24, 1938, a sale deed by the respondent Chaltibai in favour of the Firm Ganeshram Fatteh Chand the family firm of witness N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... drinarayan to that of Lakshminarayan. These documents will be discussed later. In this case both the parties were aware of the truth of the facts and consequently the doctrine of estoppel was inapplicable. It cannot be said that the respondent by her own words or conduct wailfully caused the appellant to believe the existence of a certain state of things i.e. adoption by Lakshminarayan and induced him to act on that belief so as to alter his position and therefore she could not be concluded from averring a different state of things as existing at the same time. See Pickard v. Sear, (1837) 6 AD. E. 469; (1837) 112 E.R. 179 and Square v. Square, [1935] P. 120. The Privy Council in Mohori Bibi v. Dhurmdas Ghogh, (1902) 30 I.A. 114 held that there can be no estoppel where the truth of the matter is known to both the parties. Therefore when both the parties are equally conversant with the true facts the doctrine of estoppel is inapplicable. The documents giving rise to the plea of estoppel were four and the appellant also relied on the acts of the respondent which will be referred to later. The first document was an application dated March 21, 1936, for a succession certificate which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entry. In the later entry the appellant Kishorilal was shown as the son of Badrinarayan and not the adopted son of Lakshminarayan. Whether the document the previous Bahi entry was at the instance of the respondent Chaltibai or not is not material because it does not advance the case of the appellant. This document also does not show that the appellant was adopted by Lakshminarayan. Then there is a document adhikar patra dated May 4, 1946, by which a dispute between the appellant and the respondent was referred to the arbitration of 7 persons. It was signed by the appellant and the respondent and it was therein recited: Relations between us mother and son have become strained in connection with some matters. it is very necessary to remove the same . In another portion of the document also words used are between us the mother and the son . This document also was not accepted by the High Court as containing an admission because even at the time of its execution the respondent Chaltibai was denying the adoption of Kishorilal which was proved by the testimony of two of the panches (arbitrators) themselves. It cannot be said therefore that this document represented correct sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat was not a case of the parties being equally conversant with the true facts and further there was a finding that the person claiming to be the adopted son was as a matter of fact adopted. In our view there is no substance in the plea of estoppel raised by the appellant. Whatever the acts of the respondent Chaltibai, what. ever her admissions and whatever the course of conduct she pursued qua the appellant Kishorilal they could not amount to estoppel as both parties were equally conversant with the true facts. In none of the four documents which are signed by her, is there any admission that Kishorilal was adopted by her husband during his lifetime. On the other hand in the sale deed dated January 24, 1938, she recited an adoption by herself which is not the adoption that the appellant relied upon in support of his case. The other documents i. e. the application for succession certificate and the arbitration agreement and the entry in the Panda's bahi are all consistent with the recital in the sale deed and do not establish the case of the appellant as to the adoption by Lakshminarayan himself. It was then argued for the appellant that the course of conduct of the respo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terest it was to foist an adoption on her. Her own relations do not seem to have taken much interest in her or her affairs. She was thus a widow, lonely and dependent upon her husband's relations. The trial Court described her as a pardanashin woman. Although Badrinarayan himself denied that he was managing the estate of Lakshminarayan, Narsingdas one of the appellant's witnesses stated that Badrinarayan was doing so and Badrinarayan admitted that he looked after the court cases though at the request of the respondent. It is with this back. ground that the evidence has to be considered and weighed. Any admission made by a widow situated as the respondent was would necessarily carry very little weight: Padamlal v. Fakira Debya A.I.R. 1931 (P.C.) 84. Besides the four documents above mentioned the appellant Kishorilal relied on the following facts as instances of admissions and conduct of the respondent Chaltibai. The first is the performance of obsequies by the appellant and the subsequent taking of the appellant in her lap by the respondent. The mere fact of performance of these funeral rites does not necessarily support an adoption. The performance of these rites freq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... venue proceedings. As we have said above, Badrinarayan took over the management of the estate of Lakshminarayan and was looking after the conduct of the court cases. If in those circumstances the mutations were made in the name of the appellant or suits were brought in his, name or even if he took out licences in his name would be matters of small consequence. It is not shown that at the time of the mutations the respondent was present or was represented or the suits were brought with her knowledge and it appears that all this was done because the management of the estate as well as the conduct of the cases in courts was in the hands of Badrinarayan. Then the fact that after he attained majority, the appellant was managing the estate and was recognised by everybody as its owner also is of little consequence because as far as the respondent was concerned somebody had to manage the property, whether it was Badrinarayan or the appellant Kishorilal to her it made no difference. It may also be mentioned here that in the mutation order passed by the Tehsildar on April 8, 1936, which related to 3As. share of Mouza Jabartola the mutation entry was made in favour of the respondent and not i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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