Hari Gopal Agarwalla vs Hari Prasad Doshi @ Bachu Bhai

B.L. Hansaria, J.—A suit for ejectment and neallMtion of arrtar rent was filed by one Mustt. Jani Devi against the opposite party. On her doath, she was substituted by Hari Gopal, who is the Petitioner in this revision application. Ejectment was prayed for by Jani Devi on the ground that the opposite party was a defaulter and that the suit house was required for running the business of her adopted son Hari Gopal. In the written statement which was filed after Hari Gopal had been substituted as Plaintiff in place of Jani Devi, apart from denying the, allegations relating to the Defendants being a defaulter and the premises being needed bonafide, a point was taken that Hari Gopal was not the local heir of Jani Devi as he had not been adopted by observing ceremonies according to the Hindu Shastra. A point relating to non-maintainability of the suit had also been taken. It may be stated that while allowing substitution, the question relating to invalidity of adoption bad been kept open. The trial court answered the contested issues in favour of the Plaintiff and decreed the suit. On appeal the decree has been set aside by the learned. District Judge Nowgong without going into the question of "the Defendant being a defaulter, or the premises being needed bonafide by the Plaintiff, because prima facie the learned District Judge was not satisfied if Hari Gopal had been daily adopted by Jani Devi. the learned Court held that the suit was not maintainable and that Hari Gopal could come up with a sait for ejectment after establishing his right as the legal representative of Jani Devi in a proper forum.

Feeling aggrieved at the dismissal of the suit, Hari Gopal first preferred second appeal to this Court, which was numbered as S. A. 74 of 1979. This came up before the Hon''ble Chief Justice on 15.9.80, and in view of decision of this Court in LPA. No. 11 of 1976 which has held (SIC) no further appeal lies from the decision of the first appellate Court, he dismissed the same. In the meantime however Hari Gopal had approached this Court in its revisional jurisdiction also.

To clear the ground for bringing the Petitioner''s case within the ambit of Section 115 of the Code of Civil Procedure, Shri N. M. Lahiri, who has argued the case for the Petitioner, has urged that by leaving the question of determination of the Petitioner being a legal representative of Jani Devi in some other iproceodlng to be instituted in a proper forum, the learned district Judge failed to exercise a jurisdiction which is Vested in him. Reliance is placed on Order 22 Rule 5, which reads

Determination of question as to legal respresentative where a question arises as to whether any person is or is not the legal representative of a deceased Plaintiff or a deceased Plaintiff or a deceased Defendant, such question shall be determined by the Court:

The legal position is thus indubitable and Shri Bhatta-oharjee, appearing for the opposite party fairly states that it was incumbent on the part of the learned District Judge him-self to finally decide this question. There is thus no initial hurdle in the way of the Petitioner in approaching this Court u/s 115 of the Code of Civil Procedure.

What had landed the learned District Judge in difficulty was the submission on behalf of the opposite party that Jani an Agarwalla by caste was governed by the Benares school of Hindu law which required inter alia prior permission of her husband to take Hari Gopal in adoption and also performance of Data omam and other Shastric rites. The learned District judge also felt that there was no evidence of customary rules to be fallowed by a person like Jani Devi for taking In adoption toy person. Being of the view that the suit before him was not the proper forum for establishing the title of the petitioner as an adopted son of jani Devi, the learned Court left the matter to be decided in a proper forum. As under Order 22 Rule 5 the matter could not have been left for adjudication in some other proceeding, the same has to be determined herein.

Though the stand taken before the learned first appellate Court on behalf of the Defendant was that Mustt, Jari Devi was governed by the Benaras School of Hindu law which curbed the power of a widow to take a son in adoptloa as stated earlier, the same is not urged before me by Shri Bhatta-charjee. This has been done keeping in view the Division Bench decision of this Court In Gift Agarwallni v. Mt. Panna Agar walant AIR 1956 Gau 100. in a learned judgment Sarjoo Prasad, C.J. after referring to various decisions on the subject which included many pronouncements of the Privy Council. summed up the position thus at p. 105.

The law as gathered from these decisions clearly indicates that no particular Authority for the purpose of adoption is needed, is it necessary to perform any particular ceremony in order to validate such an adoption, provided in fact a boy has been taken in adoption. The factum of adoption can in appropriate cases be proved even by a document for that purpose and by the conduct of the parties without any proof of any particular ceremony.

In that case challenge to the adoption by Mustt Gigi, who was accepted as belonging to Saraogi community, was advanced on the grounds that she had no authority to adopt without her husband''s permission and that a brothers'' son could not have in any case been adopted by her. The challenge was not entertained because of the above position in law.

Both the sides accepted the aforesaid decision as having propounded the correct legal principle and argued the case before me as to whether document and conduct of the parties prove the factum of adoption of Hari Gopal by Jani Devi. Before adverting to this Aspect, it has however become necessary to say a few words about the decision itself.

With respect I say that some of the observations in Gigi are wide, nay, not even correct. As the same has no beating (SIC) at hand, I only wish to put my views on record (SIC)leave the matter at that. My disagreement does (SIC)make a difference in this case because it was not disputed before (SIC)that (SIC)Ram husband of jani Devi was a Saraogi, as state by P.W.2. The word "Saraog" is a corruption of the word "Sravak" or secular Jain, or the laity as observed (SIC) Golap chandra Sarkar Sastri''s Tagore I saw Lectures 1888. As stated by the learned speaker, "Sravak" is one of the two broad classe in which the Jains are divided the other being (SIC) or Jaina ascetics, It is an accepted position that the (SIC) "Jain" and "Saraopi" are used Inter (SIC). It Is also well-established that Saraogi or froculaf Joins got themselves sub-diviced into"numerous (SIC) most common of which are Oswals, Agarwals, Parwars (or Porws''s) and Khandelwals. Thus, we have what may be called Jain Agarwals or Agarwal Saraogis. jain Devi was one such person. What has been stated about non-application of rules of strict Hindu law In so far as adoption by jain except those originally coming from Madras and the Punjab is concerned would apply to all Jains, This has been (SIC) laid down by the Supreme Court (in S.S. Munna Lal Vs. S.S. Rajkumar and Others, , which dealt with adoption by (SIC) Jains, of Porwai sect in Madhya Pradesh. The Supreme Court referred to a large number of decisions beginning from 1833 which Included pronouncements of the Privy Council in AIR 1921 77 (Privy Council); AIR 1948 60 (Privy Council) ; and AIR 1948 177 (Privy Council) ; and held in pira 11 that these cases clearly showed that the custom is generally applicable to Jains all over India except the Jains domiciled in Madras and Punjab; This was so irrespective of the sect to which a particular (SIC).belonged. It was also observed that where a custom is repeatedly brought to the notice of the courts of the country, the court may hold that custom is introduced into the law without necessity of proof in each individual case.

9A. My caveat is to that part of Gigi''s decision wherein It, has been stated that this apply to all Agarwals, Jains or (SIC)jain. This view taken in Gigi owed its origin to a mis-coaception which found place, if I may say so with profound respect, in the decision of Privy Council in AIR 1925 118 (Privy Council) . I was observed there that Agarwals generally Where to Jainism and (SIC) the Drahmanleat doctrine; rrla-ting to obsequial ceremonies, the performance of Sharadha, offering of oblitions for the salvation of the soul of the deceased etc. This view had been taken by the Privy Council referring to Bhagwun Das v. Rajmal 10 Bom H.C.R.241. This decision is not available to mo ; but I have no doubt that it had dealth with Jain Agarwals as distinguished from Hindu Agarwals, if I may put it that way. This would be clear from the following quotation of the Allahabad High Court''s judgment which was subject matter of appeal in Sheo Singh v. Must, Dekho, (1878)5 1 Gau 87. The High Court''s judgment contained the following general account of the history and religious tenets of jainism as quoted at p. 107:

The parties are Saraogec Agarwals, one of the numerous sub-divisions of the sects of the Jains. What little is known of the history of that sect is to be found collected In this learned judgment of the chief Justice of Bombay in Bhogvamias Tajmal v. Rajmal: For upwards of eleven and twelve centuries they have seceded from the creed of the Vedas, and their religious tenets have more affinity with the precepts of the Budhists than with those of the Brahmanism "They differ particularly from the Brahraanical Hindus in their conduct towards the dead, omitting all obsequies after the corpse is burnt or buried. They also regard the birth of a son as having no effect on the future state of the progenitor, and, consequently, adoption is a merely temporal arrangement and has no spiritual object.

The two other Privy Council decisions relied on mainly in AIR 1948 60 (Privy Council) and AIR 1948 177 (Privy Council) had dealt with cases of Jains of Khandelwal sect and Marvari Jain of Visa Oswal respectively, 9B. this is rot an occasion to trace the history of Agarwals; but it is (SIC) to say that it would be totally Against the religious beliefs of Agarwals in general to soy that tbey repudiate Brahmanical doctrines relating to perfor-mance of Shradha etc. and that among Agarwals adoption it a purely secular affair which view was expressed by Lala Chiranjilal in his article "Adoption among Marwari Agarwals"

printed in the Journal section of the AIR 1937 80, which has been referred at p. 107 of Gigi. Agarwals are said to be (SIC) of Maharaj Agrasen who had ruled Agroha a few thousand years back. Basically they are followers of Hindu (SIC) and Brahamnical doctrines, Performance of Shradha is one of the indispensable functions of the Hindu Agarwal community of which alomost a judicial notice can be taken, Adoption among: them is thus not only a secular arrangement of continuing line of ancestor, but has a religious basis also the, same being due per formances of Sihradha and offering of oblations, It is. stated that one of the descendants of (SIC)and as such the Agarwals to be jains also. Among the Agarwals we thus have, as a matter of fact, some who are Jains and others who are not so The attitude to (SIC) etc. taken by Jain Agar Was can definitely not be applied to other 10. This aspect (SIC) be gone into further as in the came at hand we are concerned with jain Agarwals and bath the sides agreed before me that in such a case no authority for adoption by a widow is needed nor is it necessary to perform any particular ceremony provided a boy had in fact been taken in adoption to prove which document as well a: conduct of the parties may be looked into.

So far as document is concerned, there is really a contemporaneous one in lbs case at hand which is Ext. 1. a registered deed of adoption executed on 6 455 and registered on 13.4.55 the adoption being according to the plain-tiff''s side on 1.3.55. At the (SIC) registered among others P.W.2, Sitaram was present, who is a brother of late Jani Devi. Among the witnesses (SIC) this deed, we get P.W.s 3 and 5. Shri Lahiri submited that this document by itsself is sufficient to (SIC) establish the case of Hari Gopal that he was adopted by Jani Devi. whether the adoption was with the autliority of Anit Ram who had died sometime in 1935-36 and whether all the ceremonies prescribed by Hindu Shastras were performed or not as alleged in the deed need not be gone into for case at hand because of what has been state above Shri Bhattacharjee contends that execution of Ext 1 by itself is not sufficient to clinch the issue as we have to bear in mind the conduct''ofjthe parties as weell as stated in the aforesaid quote from Gigi. the conduct therefore bo also looked into.

On this as well Shrl Lahie1 urges that the fact that Hari Gopal used to stay over since his adoption, If not from carlier, with Jani Devi, and that near relations of Jani Devi bad accepted Hari Gopal as the adopted sou of Jani Devi, are positive acts of conduct showing acceptance of Hari Gopal as the son of Jani Devi. The fact of Hari Gopal staying with Jani Devi has been deposed by the Plaintiff''s witnesses. This would follow even from what was stated. by D.W. 3, who admitted that his brother had studled at Gualati from 1954-55 to 1967 and at that time Hari Gopal was also (SIC) with his brother Now from the evidence of P.W. Hamraj. the natural father of Hari Gopal, we get that though he is a men from Nowgons, he had once come to Guuhati after the become World War to see if he could get setlled there. He (SIC) some (SIC) in Manipuri Basti but had to wind up the same after two yearr whereafter he went to Nowgong. Hari Gopal was also taken back but his grand-father late Sanchi Ram brought him back. The Plaintiff''s case being that the adoption was in 1955 and D.W. 3 having admitted that Hari Gopal had stayed at Gauhati from 1954-55 in 1967, the Plaintiff''s case that Hari Gopal had lived with Jani Devi ufier his adoption has to be accepted as true. Among the Plaintiff''s witnesses, there is P.W. 2. Sitaram, who, as already noted, is a brother of. Jani Devi. He was one of the persons to be closely associated with the registration of Ext. 1. P.W.3 is a person of the locality and has fully supported the case of the Plaintiff. P.W. 5 is also a near relation of. the parties and has deposed about what function bad taker place at the time Hari Gopal was adopted. The natural father. Hari-Gopal has also testified about the fact of adoption. Thus there is no challenge to the adoption of Hari Gopal by the kith and kin of Jani Devi. Opposite Party No. 1 is definitely a stranger, in this regard. Still then he is within his rights to challenge the adoption, which according to Shri bhattacharjee-is not fully borne out by the conduct of Hari Gopal himself.

He first refers in this connection to; Ext. 7, which is a general power of attorney in favour of Hemraj. This is dated 12.2.05, My attention is invited to the endorsement of the Sub-Registrar speaking about the identification of Jani Devi who alone (SIC) for both (SIC) and (SIC) by Hari Gopl, Son of Hemraj. As against this endersoment. the clear (SIC)in the body of the deed that Hari Gopal was an adopted son of late Anit Ram cannot however be ignored. Reference is then invited to a Vakalatnama of 1972, which is at p. 23 of File C-l of the Title Suit, wherein Hari Gopal''s father''s name has been given as Hemraj. The writing however is not in the Hand of Hari Gopal and as such it would be difficult to pin him down to all that hat, been written In the Vakalat-name especially us his admission, My attention is next Invited to an affidavit of 1976 (us at p. 90 of the of said file) which was in support of a petition under Order 39 Rules 1 and 2 of the CPC filed by Hari Gopal In that affidavit however the deponents'' name is written as "Hari Prasad" whose father''s name was given as "Hansraj". Apparently there are mistakes in both the names inasmuch as nobody has stated that Hart Prasad is also a name of Hari Gopal, nor is there anything on record to show that Hemraj has an alias in Hansraj. A perusal of the application however shows that Hari Prasad is the name of the Defendant; as such some amount of casual-ness in drawing the affidavit is apparent.

This is all that is brought to my notice by way of con-duct of Hari Gopal which is said to be at tangent with his assertion that he was adopted by Jani Devi, widow of Anit Ram in 1955. The aforesaid acts do not have the strength of outweighing the conduct to which my attention has been invited by Shri Lahiri-'' te former are rather stray acts done casually and even wrongly. These cannot be relied to undo a thing which had taken place in 1955 and had been accepted by the relations, far and near, of Jani Devi. The fact of adoption was duly recorded very soon after it had taken place in Ext. 1. All the persons associated with Ext. 1 have supported the case of adoption of Hari Gopal by Jani Devi. Hari Gopal thereafter stayed with Jani Devi and severed his relation with his natural family. This being the position, I have no hesitation in holding that the factum of adoption of Hari Gopal by Jani Devi has been adequately proved by the Petitioner.

This leaves for consideration the next question agitated before me. This is about maintainability of the suit at the hand of Jani Devi. it is urged by Shri Bhattachurjee that if Hari Gopal had been adopted by Jani Devi, even in 1955, the same Would relate back to 1935-36 when Anit Ram had died. As Such it is Hari Gopal who had become the owner of the suit property inasmuch as even the Hindu, Woman''s Right to pro. (SIC)Act 1937 cannot come to the assistance of Jani Devi as that Act bad come into force with effsct from 14.4.37 and had bad no no retrospective effect. In view of this, according to Shri Bhatta-Jharjee, Jani Devi could not-have instituted the eviction suit in 1970. By referring to Kumar Krishna Prasad vs, Baraboni Coal Concern AIR 1937 PC 231, it is submitted that Section 116 of the Evidence Act would not stand in the way of the Defendant in challenging the title of Jani Divi if the same had come to an end after the Defendant had been inducted in the premises. As the tenancy had been taken in 1953 and the adoption was in 1955, it is urged that though the Defendant had admitted in Ext. 6 that he had taken lease from Jani Devi, he is not estopped from pleading that the title of Jani Devi had come to an end after the lease had been taken.

For the case at hand it is not necessary to go into this aspect of the matter because as fairly pointed out by Shri bhattacharjee himself, the definition of "landlord" in the Assam Urban Areas Rent Control Act, to which reference has also been made by the learned trial Court means a person who is for the time being receiving or entitled to receive rent". The Defendant''s own case being that he had bean paying rent regularly to Jani Devi, she did become the land-lady of the permises and the suit for eviction at her hand cannot be resisted on the ground that she could not have tiled the same, Thus, the suit as filed originally caunot be held to be non-maintainable.

The result is that the petition is allowed by holding that Hari Gopal is an adopted son of Jani Devi and the suit as filed was maintainable. The impugned order is'' therefore set aside. As the learned District Judge did not enter into the discussion of issue No. 2 "whether there is ground for ejectment of the Defendant" ? let, the same be decided by him on the basis of the evidence already on record, It may be stated that, eviction was prayed for on the ground that the Defendant is a defaulter and the suit, premises is needed bonafide. As the suit was filed in 1970 and already a decade has passed, the learned District Judge to whom the case is being remanded would dispose of the matter within a period of four months from the receipt of the records by him, which would be sent (SIC)with due despatch, As agreed to by both the side''s, the appeal may now be disposed of the learned District Judge, Kamrup at Gauhatl and so let the record; be sent back to him under intimation to the District, Judge, Nowgong.