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TMI Blog2003 (9) TMI 789X X X X Extracts X X X X X X X X Extracts X X X X ..... a' from, according to which the person adopted would not sever his interest in the estate of natural parents and, at the same time, would acquire interest in the properties of adoptive father upon his adoption, provided there was an agreement between the natural father and the adoptive father to the effect that he will be considered to be son of both of them. As Uday Ram had no male issue, he adopted Goverdhan Das in 'Dwyamushyayana' form. One chandra Bai was the wife of Goverdhan Das and Kishan Gopal-plaintiff No. 1 and Srinivas-plaintiff No. 2 were their sons. Sundra Bai-defendant No. 3 was the keep of kishan Lal from whom he had two sons, namely, Rajgopal -defendant No. 1 and Ramgopal-defendant No. 2 and as Sundra Bai was not legally married wife of Kishan Lal, defendant Nos. 1 and 2 were illegitimate children of Kishan Lal from her. Goverdhan Das and his sons were in joint possession of the properties of Uday Ram with him as well as those of Moti Lal with Kishan Lal and his children. Kishan Lal died in the year 1939 and Goverdhan Das in 1945. Thereafter as the sons of Kishan Lal denied right of the plaintiff Nos. 1 and 2 and their father in the properties which belo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the first appellate court, the Judgment and decree passed by the first appellate court were set aside and the matter was remanded to that court for deciding the appeal afresh on merits. In view of this, as it was not necessary for the High Court to consider the cross objection on merits, the same was dismissed. After remand, a petition under Order 41 Rule 27 of the Code of Civil Procedure, for taking certain documents into additional evidence, was filed before the first appellate court which having felt that it was a fit case for granting the prayer but as for admitting the same into evidence, witnesses were required to be examined, remanded the matter to the trial court after setting aside the judgment and decree of the trial court. Upon remand, the trial court decreed the suit in part only with respect to half share of the plaintiffs after recording findings that adoption was in 'Dwyamushyayana' form and not in ordinary form, Goverdhan Das was given in adoption by his brother Kishan Lal and not father Moti Lal, Sundra Bai was legally married wife of Kishan Lal and defendant Nos. 1 and 2 were his legitimate children from Sundra Bai and the suit was filed within time. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot a case of limited remand but an open remand, the High Court did not go into the merit of findings recorded by the first appellate court on other questions, including adoption, and, after setting aside the judgment and decree of the first appellate court, remanded the matter to it for deciding the appeal afresh, meaning thereby on all the points. So far as the cross objection is concerned, as the judgment and decree of the first appellate court were set aside, the same was rendered infructuous and accordingly dismissed. In this view of the matter, we are of the opinion that the High Court committed an error of law in observing that the findings on the question of adoption recorded in favour of the plaintiffs by the first appellate court on the earlier occasion before remand by the High Court had been confirmed by it while passing the remand order for which there is absolutely no foundation and the same is contrary to the materials on the record. The other two points which fall for consideration of this Court are whether findings recorded by the first appellate court to the effect that (i) Goverdhan Das was given in adoption by natural father Moti Lal and (ii) the adoption was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n this connection may be made to a decision of the Privy Council in the case of Siddik Mahomed Shah v. Mt. Saran, AIR (1930) PC 57, in which it was held that Where a claim has been never made in the defence presented, no amount of evidence can be looked into upon a plea which was never put forward . The said case has been referred to by this Court with approval in the case of Bhagat Singh and Ors. v. Jaswant Singh, AIR (1966) SC 1861. In that case, some evidence was led but the High Court refused to go into the question observing that where no plea was taken, it cannot be said that there was any list between the parties thereon. This Court upheld decision of the High Court observing that the same was supported by decision of the Judicial Committee in the case of Siddik Mahomed Shah (supra). Thus we do not find any error in finding recorded by the first appellate court on this point. Next question to be considered is as to whether the first appellate court was justified in holding that the adoption was not in 'Dwyamushyayana' form but in ordinary form. The present case relates to adoption under the custom prevalent in the community to which the parties belong. Undisputed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n implied understanding that he is to be the son of both fathers. This again seems to take place in different circumstances. One is what is called the anitya, or temporary adoption, where the boy is taken from a different gotra, after the tonsure has been performed in his natural family. He performs the ceremonies of both fathers and inherits in both families but his son returns to his original gotra. This form of adoption is also obsolete. The only form of dwyamushyayana adoption that is not obsolete is the nitya or absolute dwyamushyayana in which a son is taken in adoption under an agreement that he should be the son of both the natural and adoptive fathers. Mulla on Principles of Hindu Law, 18th Edition, page 821, has enumerated the form of 'dwyamushyayana' adoption which runs thus : 486. (1) Where a person gives his son to another under an agreement that he should be considered to be the son of both the natural and the adoptive fathers, the son so given in adoption is called dwyamushyayana. In this form of adoption, it is essential to prove such an agreement and it should also be proved that there was the ceremony of giving and taking of the adoptive son. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mal Deshpande, AIR (1916) Bombay 68 and Mohna Mal v. Mula Mal and Ors., (1925) 89 Indian Cases 688. Dwyamushyayana form of adoption was subject matter of consideration before this Court in the case of M. Ct. Muthiah and Anr. v. Controller of Estate Duty, Madras, AIR (1986) SC 1863 wherein the decisions of Judicial Committee referred to above were noticed with approval. In that case question had arisen in relation to payment of estate duty in the hands of the accountable person upon the death of one M. Chindambaram Chettiar who had given his only son in adoption in dwyamushyanana form and after adoption, another son was born to him. Upon the death of the natural father, question had arisen for the payment of estate duty upon the estate of the deceased. On behalf of the Revenue, it was contended that the share of deceased in the joint family property was only half as one son was given in adoption. On behalf of the accountable person, stand was taken that as adoption was in dwyamushyayana form, the adopted son did not sever his interest in the estate of the natural father and was entitled to inherit properties of adoptive as well as natural father both, as such share of the natural ..... X X X X Extracts X X X X X X X X Extracts X X X X
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