RANAWAT, J. - (1.) THIS is second appeal by Nandkishore and Mst. Birji against the judgment of the District Judge, Kotah, of the 31st of October, 1949, by which the judgment and decree passed by the court of the Civil Judge, Kotah, on the 30th of September, 1947, were set aside and the suit of the plaintiffs was decreed for possession of the disputed property with costs.
(2.) A suit was filed by Mst. Ramnathi as next friend of her two minor sons Brijbehari, and Bhawani Shanker against Nandkishore and his wife Mst. Briji in the court of the Sub-Judge, Kotah, for recovery of possession of a house of which the details were given in the plaint and which belonged to one Sheonarain who was an uncle in relationship to the plaintiffs. After the death of Sheonarain in January, 1944 his widow Mst. Surja Bai inherited his property as limited owner. She died on the 11th of March, 1945 and after her death Mst. Briji and her husband Nandkishore took possession of the properties left by her in pursuance of a will executed by her during her life time in favour of Mst. Briji. It was claimed by the plaintiffs that as they are the heirs of Sheonarain they are entitled to inherit the property left by Sheo Narain on the death of his widow. The plaintiffs therefore prayed for a decree for possession of the house left by Sheonarain at Kotah. It was also alleged that Srikishan, father of Briji, was also related to the deceased Sheo Narain by blood but he had gone in adoption to another family at Jhalawar and his relations with the deceased had therefore been severed. The genealogical table of Sheonarain's family was stated to be as follows: - Ganesh alias Bakshuram Onkar Gordhan Sheonarain Srikishan (Went in adoption to Mannalal at Jhalawar) Badri | | Nathi Briji Brijbehari Bhawani Shanker Mt. Briji has been married to Nandkishore defendant No. 1. The defendants admitted that the plaintiffs were the sons of Badri and grandsons of Gordhan. It was also admitted by them that Srikishan became an heir of Mannalal at Jhalawar but it was denied that any ceremonies of Srikishan's adoption were performed. It was also denied that Gordhan and Onkar, the father of Sheo Narain, were brothers. It was alleged by the defendants that Mt. Suraja Bai, the widow of Sheo Narain, made a will before her death in favour of the defendant No. 2 Mt. Biriji on the 7th of March, 1945 in respect of the properties of Sheo Narain as well as her own. The first court held that Srikishan's adoption to Mannalal had not been proved by the plaintiffs and that the defendants had also failed to prove the execution of a will by Surjabai. It was further held that Onkar and Gordhan were real brothers. The suit of the plaintiffs was dismissed on the ground that Srikishan was nearer in degree to the deceased then the plaintiffs and he excluded the plaintiffs from inheriting the property left by Sheonarain. On appeal, the learned District Judge of Kotah held that the adoption of Srikishan to Mannalal at Jhalawar had been sufficiently proved and the suit of the plaintiff was therefore, decreed. The defendants have come in second appeal to this Court. They have not taken their stand on the will of Surja Bai set up by them in the trial court and it is not necessary to deal with that aspect of the case. They have challenged the finding of the lower court above the adoption of Srikishan. The decision of this case hinges on the fact of adoption of Srikishan to Mannalal. If his adoption to Mannalal is held proved the claim of the plaintiffs to the property left by Sheonarain would succeed. In case, the findings on the issue of adoption is otherwise, Srikishan being nearer Sheonarain would exclude the plaintiffs from succeeding Sheo Narain as his heir under the Hindu Law. In this appeal, it has been urged as follows. (1) that the lower appellate court failed to appreciate the evidence of Srikishan on the point of his adoption to Mannalal. According to Sri Kishan Mannalal died before he was taken to Jhalawar by Kanwara Bai and his widow had been eloped by a Muslim before that time. Srikishan, when he was produce by the plaintiffs themselves, should be regarded as a witness of truth and the circumstances described by him would make his adoption to Mannalal impossible. The fact that Srikishan gave out his parentage of Mannalal at Jhalawar could not have been considered sufficient to prove his adoption. (2) that the decision in the cases of Neelawa Dundappa Kohalli vs. Gurshiddappa Modiwallappa Pattanshetti and others (1) (A. I. R. 1937 Bom. 169.); Kailash Chandra Nag and others vs. Bejoy Chandra Nag and others (2) (A. I. R. 1923 Cal. 18.); S. Ramakrishna Pillai vs. Tirunarayana Pillai and others (3) (A. I. R. 1932 Mad. 198.) and Seth Biradhmal and others vs. Sethani Prabhabhati Kanwar and others (4) (A. I. R. 1939 P. C 152.), which have been relied on by the lower appellate court do not help the case of the plaintiffs when the fact of adoption is rendered impossible on account of the death of Mannalal and the elopement of his widow before Srikishan was taken to Jhalawar for adoption. (3) that the lower appellate court should not have placed reliance on the statement of Ramchandra regarding performance of the ceremonies of adoption when he was not believed by the trial court. (4) that even thought the finding of the lower court about adoption relates to a question of fact it can be challenged in second appeal as ignoring of evidence by the lower appellate court is a question of law. It may be noted that the trial court was influenced by the statement of Srikishan in coming to the conclusion that Srikishan could not have gone in adoption to Mannalal at Jhalawar because according to this witness he did not see after he was taken to Jhalawar both Mannalal and his widow. The statement of Ramchandra was disbelieved for certain reasons which will be dealt With hereinafter and he evidence of Jhunthilal, Gopaldutt, Ramnathi and Gangabai was considered to be not of much assistance as it was all hear say so far as the point of adoption was concerned. The learned trial Judge under these circumstances held that the adoption of Srikishan to Mannalal was not proved. On appeal the learned District Judge disagreed with the trial court as regards the value of statement of Ramchandra. The reasons given by the trial Judge for discarding Ramchandra's evidence were discussed in detail and the learned Judge came to the conclusion that those reasons were not sufficient to condemn his statement as untrue. On the other hand, the learned Judge thought that Srikishan was an interested witness and his statement was based this account. On the evidence of Ramchandra the adoption of Srikishan to Mannalal was held proved, specially because this was the case of old adoption which had been acted upon for a number of years. The cases in Neelwa Dundappa Kohalli vs. Gurshiddappa Madiwallappa Pattanshetti and others (1) (AIR 1937 Bom. 169.); Kailash Chandra Nag and others vs. Bejoy Chandra Nag and others (2) (AIR 1923 Cal. 18.); S. Ramkrishna Pillai vs. Tirunarayana Pillai and othejrs (3) (AIR 1932 Mad. 198.) and Seth Biradhmal and others vs. Sethani Prabhabhati Kunwar and ojthers (4) (AIR 1939 P. C. 152.), were referred to in support of the view taken by the learned District Judge. It has been urged on behalf of the appellants that because Srikishan was produced as a witness on the side of the plaintiffs he should be regarded as a witness of truth and the circumstances described by him about the death of Mannalal and the elopement of his widow should therefore be taken to be true and on that basis the adoption of Srikishan should be held impossible. Reliance was placed on the authority in the case of Mahunt Shatrugan Das vs. Bawa Shamdas and others (5) (AIR 1938 P. C. 59.) in which their Lordships of the Privy Council observed as follows: - "he adopted instead the tactics of calling Shamdas, defendant 1, as a witness for the plaintiff, with the usual result that important features of his case are denied by his own witness. Their Lordships have on previous occasions condemned the practice and approved of the course taken by the High Court in treating the plaintiff as a person who put defendant 1 forward as a witness of truth. " On this point the respondents have urged that Srikishan was not a party to this case and the decision in Seth Biradmal and others vs. Sethani Prabhabhati Kunwar and others (4) is therefore not directly applicable to his case. He was a witness no doubt of the plaintiff's but the defendant No. 2 Mt. Birji is one of his daughters and it was quite natural for him to feel interested in her. Under these circumstances, the plaintiffs should not be regarded as being bound by certain averments made by this witness in his cross-examination. It is true that Srikishan was not a party to this case and the observations of their Lordships in Seth Biradmal's case do not apply to case. The value of his evidence is to be judged on its merits and the plaintiffs cannot be pinned down| to the case put by him in his, cross-examination, merely because they chose to produce him as their witness. In re : Rangaswamy Iyengar (6) (XXI Indian Cases 781.) it was held that a party calling his opponent as a witness is not bound by all the statements made by him, as such a witness lis clearly hostile to the person calling him. In the present case, though Srikishan was not a party to the case, he was certainly interested in his daughter who was a defendant and as such he was clearly hostile to the plaintiffs who called him as their witness. The decision of the Privy Council in Kishorilal vs. Chunnilal (1) (ILR 31 All. 116) was also referred to on this point by the learned counsel of the appellants but the observations of their Lordships in that case relate to the practice of calling opposite party as a witness and those observations therefore do not apply to case of Srikishan who was not a party to the proceedings. A reference may be made to a decision of the Allahabad High Court in Baburam vs. Emperor (2) (AIR All. 754.) where it has been observed that a party is not bound by the evidence of a witness whom, he produces, and no part of the statement of such a witness amounts to an admission on behalf of the party producing him, nor is there any rule of law that a party is not able to say that a witness produced by him is not speaking the truth upon some particular point unless he makes written application to say that the witness is hostile. These observations were made in a criminal case but as Law of Evidence, they are equally applicable to civil case. Similarly, in the case of Jalal Din and other vs. Nawab and others (3) (AIR 1941 Lal. 55.) Beckert J. has remarked that there is no rule of law that a party must be bound by the statement of his witnesses, though the belief in such a rule is not uncommon and does great harm in judicial trials in some of the subordinate courts. Simply because, the plaintiffs produced Srikishan as a witness on their behalf they should not be considered to be bound by his statement. Defendant No. 2, Mt. Birji, is Srikishan's daughter and if the suit it dismissed the property left by Sheonarain would go to her. It was therefore natural for Srikishan to fell interested in the case of the defendants. Srikishan stated that he was taken to Jhalawar by Kunwar Bai when he was a boy of 7 or 8 years of age for adoption to Mannalal. He mentioned his parentage of Mannalal and at the same time also stated the name of natural father. According to him Mannalal had died before he was taken to Jhalawar and the widow of Mannalal died two or three years after he had shifted to Jhalawar. He has further stated that he gave himself out as the son of Mannalal in Jhalawar State where he served throughout his life. In the records of Jhalawar State he had got the name of Mannalal entered as his father and in a suit filed against Sitaram he described himself as the son of Mannalal. In connection with the transfer of certain property which had been mortgaged to him he had got the name of Mannalal entered as his father, in revenue proceedings. In his cross-examination however he stated that the widow of Mannalal had eloped with a Muslim before he went to Jhalawar and that no ceremony whatsoever relating to his adoption to Mannalal was performed after he was taken to Jhalawar. Ramchandra P. W. 2 has stated that he attended the adoption ceremony of Srikishan and that the widow of Mannalal took Srikishan in adoption and in connection with the ceremony of adoption she took Srikishan in her lap, and that the usual custom of distributing sweets was also followed. 50 or 60 men of the brotherhood assembled on that occasion. His evidence was discarded by the trial court for the following reasons: - (1) that it was contrary to the statement of Srikishan himself. (2) that Gopaldutt and Prabhudial P. W. 6 and 3 who were also mentioned by him to have been present on the occasion of the adoption ceremony totally denied that they were present there. (3) that Prabhudayal who is of 70 years has stated that he did not attend the adoption ceremony as he was a child. If Prabhudayal was a child at that time how could Ramchandra who is younger to him remember the fact of adoption which must have taken place when he was only a child. (4) that Mst. Ganga who is related to Ramnathi, the mother of the plaintiffs lives in the same house in which Ramchandra lives and on this account she should not be treated as an independent witness.
(3.) ALL these points have been throughly dealt with by the learned lower appellate court in discussing the value of the statement of this witness. Srikishan is an interested witness and the evidence of Ramchandra cannot be discarded simply because it is contrary to the statement of Srikishan. It is true that the present of Gopal Dutt and Prabhu Dayal has been mentioned by Ram Chandra at the adoption ceremony and both these witnesses have not admitted their presence but have only stated that they heard that the ceremony took place. After a lapse of 45 years it should not be considered unnatural that a witness may not remember certain details relating to the occasion. This circumstance is not such as would render the entire statement of Ramchandra false. Prabhudayal who has given his age as 70 years stated that he could not attend the adoption ceremony because he was a child. This statement however does not appear to be correct. The adoption ceremony at the most had taken place about 45 years before he was examined as a witness and taking his age to be of 70 years as stated by him at the time of his examination he should have been of 25 years when the adoption ceremony took place. His statement that lie was only a child at the time of Srikishan's adoption is therefore obviously false. The relationship of Ganga to the plaintiffs' mother cannot necessarily be taken to influence Ramchandra. These points were throughly considered by the lower appellate court in coming to the conclusion that the evidence of Ramchandra was reliable. It is not disputed that Srikishan was taken to Jhalawar by Kunwara Bai for giving him in adoption to Mannalal and that throughout his life he was taken to be the son of Mannalal at Jhalawar. In filing a suit in a civil court and in a case of mutation proceedings in a revenue court he had described himself as a son of Mannalal. He also got an employment in Jhalawar State for the reason that he was considered to be the adopted son of Mannalal. ALL these circumstances were considered in favour of the validity of his adoption which was now being disputed by one of his daughters after a lapse of about 45 years. According to the Hindu Law, the onus of proving adoption is on the party who alleges it. It was therefore in the present case for the plaintiffs to prove the fact of Srikishan's adoption to Mannalal, but after a lapse of long years, it is natural that the evidence of adoption may disappear and it may become very difficult to find any witnesses of the ceremony of actual giving and taking in adoption. In such cases some evidence of the fact of adoption may be regarded as sufficient to shift the burden on the other side to prove want of adoption. In the case of Lala Rup Narain vs. Gopal Devi (1) (ILR XXXVI Cal. 780) there was a dispute about adoption which was alleged to have taken place 50 years ago so that direct evidence of much value could hardly be looked for. Their Lordships of the Privy Council in such a case observed as follows: - "their Lordships are of opinion that the adoption is established. Before the death of Sultan in 1861 Wazir is described as his adoption son. On the death of Sultan, Wazir succeeded to the estate without controversy, which he could only have done as adopted son, and enjoyed it and disposed of it as his own without controversy down to his death in about 1970. Almost every document, both during the life of Wazir and since his death, is framed entirely upon the basis of the adoption. " In Mt. Binda Kuer and others vs. Lalita Prasad Chaudhry and others (2) (AIR 1936 P. C. 304.), on the basis of a statement in a will that an adoption took place on a particular date the consent of his natural parents,, it was held that the recital was equivalent to an express declaration that the adoption was in Dattaka form. This construction of the will was made 60 years after the execution and when full evidence of adoption could not have been available. This authority, even though it relates to a presumption about the form of adoption does throw light on the point of the nature at proof that may be held sufficient for the purpose proving an old adoption. In the case of Harshankar Pratap Singh vs. Lal Raghuraj Singh (1) (ILR XXIX All. 519.) the observations of their Lordships are as follows - "to establish the fact of a valid adoption it was essential for the appellant to show that it was made by the direction of the deceased husband of the adoptive mother, and that the respondent's father had given him in adoption. In the absence of proof which the lapse of time made impossible, it was incumbent on the appellant before any presumption that those conditions were fulfilled was justified to establish an initial probability that the adoption was likely to have been validly made, and that the conduct of the parties cognizant of the facts had at least been consistent with such an hypothesis. " In that case the evidence which was lead to prove the adoption was considered to fall short of establishing such an initial probability. This decision of the Privy Council lays it down that in cases of old adoption if initial probability for adoption is established a presumption in favour of adoption may be raised. Similarly, in Rajendra Nath Haider vs. Jogendra Nath Banerjee and others (2) (14 Moore's Indian Appeals 67.) it was held by the Judicial Committed of the Privy Council (reversing the decree of the High Court at Calcutta) that although the defendant was bound to prove his title as adopted son, as a fact, yet from the long period during which he had been received as adopted son, every allowance for the absence of evidence to prove such fact was to be favourable entertained and that the case was analogous to that in which the legitimacy of a person in possession had been acquiesced in for a considerable time, and afterwards impeached by a party, who had a right to question the legitimacy, where the defendant, in order to defend his status is allowed to invoke against the claimant every presumption which arises from long recognition of his legitimacy by members of his family; and that the case of a Hindoo, long recognized as an adopted son, raised even a stronger presumption in favour of the validity of his adoption, arising from the possibility to the loss of his rights in his own family by being adopted in another family. ;