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Judgment
Chopra, J.—This is a regular first appeal from the decree of the Sub-Judge First Class, Patiala dismissing the Plaintiffs'' suit.
The Plaintiffs were Ramji Dass and his son Ram Lai. They con tended that the Defendant- firm Mangal Sain kirpa Ram through Kupa Kam, who was one of the owners and partners of the firm bought silver and raised leans from Rodu Mal deceased and Kanji Dass Plaintiff on two occasions, that the transactions v/ere evidenced by a - tries made in the account book of Rodu Mal and Ramji Dass and that the Defendant-firm owed to Rodu Mal and Ramji Dass a sum of Rs. 9500/-, Rs. 7000/- being the price of the silver and the principal amount of loan raised and Its. 2500/- being interest at the rate of Re. l/- per cent P.M. They further contended that Rodu Mal was dead and that Ram Lai had joined Ramji Dass as a Plaintiff in the suit, because he was adopted .by Rodu Mal and was his heir.
The Defendants joined issue with the Plaintiffs on almost all the points raised by them. They denied that Rodu Mal and Ramji Dass carried on any joint business. They also denied that the defend dantftrm bought any silver or raised any loan from Rodu Mal and Ramji Dass or agreed to pay any interest thereon. In addition they denied the right of Ramji Dass or Ram Lai to maintain the suit.
The trial Court framed as many as six issues. They were, whether Kirpa Ram Defendant as copartner of firm Mangal Sain Kirpa Ram executed the, document in question in favour of Rodu Mal ''Ramji Dass, whether the documents were without consideration, whether Ram Lal was adopted by Mm Rodu Mal deceased and had ''locus standi'' to sue, whether the Plaintiffs could sue without obtaining a succession certificate, whether Kishori Lal son of Mangal Sain who was alleged to be the partner of the Defendant-firm was liable and whether Plaintiff Ramji Dass had the right to sue. So far as the execution of the entries and their consideration are concerned, the trial Court found them in the Plaintiffs'' favour. The issue regarding the succession certificate was left undecided. On other issues the trial Court held that neither Ramji Dass was proved to have been carrying on a joint busi Ness with Rodu Mal nor was Rum Lai proved to have been adopted by him. In the result the Plaintiffs'' suit was dismissed and the parties were left to bear their own costs.
Before dealing with the questions that the trial Court has decided against the Plaintiffs, I may here mention that the Respondent''s counsel challenged the findings of the trial Court as regards the execution of the entries upon which the suit was based The entries are two in number and are written in Lande character. The first relates to Rs. 6000/- which is made up of Rs. 5873/2/- representing the prioe of 8 silver slabs that the Defendant firm is alleged to have bought from Rodu Mal and Ramji Dass for Rs. 5873/2/- at the rate of Rs. 125/- per hundred to as, and Rs. 126/14/-alleged to have been taken in cash. The second entry related to Rs. 1000/- which according to the Plaintiff, Kirpa Ram borrowed in cash from Rodu Mai and Ramji Dass. The Plaintiffs allege that both the entries were written by P. W. Radha Krishna who is the brother of Ram Lal Plaintiff and Kirpa Ram appended a note below each of them in which he acknowledged having borrowed Rs. 6000/.- in the first case and Rs. 1000/- in the other case and also noted the rate of interest that he had agreed to pay. Both the notes according to the Plaintiffs were signed by Kirpa Ram.
Kirpa Ram denied having made or signed the above notes. To prove these entries the Plaintiffs examined Baru Ram, Dhana Ram and Radha Kishan and put themselves also in the witness box. Baru Ram and Dhana Ram were merely. chance witnesses. Neither of them had signed nor attested . the entries. Accordingly they were both disbelieved by the trial Court and in our opinion correctly. It was on the basis of the evidence of other witnesses supported as it was by the evidence of K. a. Puri handwriting expert examined by the Plaintiffs that the lower Court held that the execution of the entries was fully proved.
In rebuttal the Defendant firm examined Shanti Sarup handwriting expert and one Kinden Lal. Kundan Lal merely deposed that he was acquainted with the handwriting of Kirpa Ram because he had been seeing him write and he gave the opinion that the parts of the entries which were alleged to be in Kirpa Ram''s handwriting did not appear to him to be genuine. The learned Sub Judge had discussed the evidence of both the experts at length and has ultimately come to the conclusion that the evidence of K. S. Puri and the reasons given by him for taking the view that the disputed parts of the entries were written and signed by Kirpa Ram, are entitled to more weight.
After hearing the parties'' counsel at some length we are inclined to think that the view taken by the Subordinate Judge is correct, but even if we hold that it was not safe to attach any value to the opinion of the handwriting expert of the Plaintiffs our own opinion is that a comparison of the signatures under the disputed notes which purport to be those of Kirpa Ram, with his genuine signatures, makes us think that they are quite similar. As regards the evidence of Radha Kishan who is without doubt the writer of the principal entries, it is no doubt correct that he is the son of one Plaintiff and the brother of the other, but this can not be a reason for discarding his evidence, particularly so when it is not even alleged that either the present Plaintiffs or Rodu Mal had any kind of ill will with the Defendant firm, or there could be any motive on their part to make a false claim against them. We asked Kirpa Ram who was ore-sent in Court to explain why the Plaintiffs had gone to the length of forging the entries and making him falsely liable for the amount in question, but he was unable to give any explanation.
The other Important fact that need be mentioned in this connection is that according to Kirpa Ram the business that he-had been doing had failed and he had been jobless for a number of years and if he was right in this there could hardly the any incentive for the Plaintiffs to take the risk of dragging him to Court on the strength of false & forged entries. . For all these reasons we hold that the entries in question were executed by Kirpa Bam on behalf of the Defendant-firm and he agreed to pay interest as mentioned therein.
it was admitted by the Respondent''s counsel that no evidence has been examined by his client to prove that the entry was without consideration. on the other hand we have the evidence of Radha Kishan writer of the entries that at the time of the first entry Kirpa Ram bought silver and Rs. 126/14/- in cash and at the time of the second entry he was given Rs. 1000/-. Accordingly we over-rule the Respondent''s counsel''s objection regarding issues Nos. 1 and 2 and hold that they were decided in the Plaintiffs'' favour correctly.
Coming now to the ''locus standi'' of the two Plaintiffs to maintain the suit. Ramji Das is the sister''s on of Rodu Mal. His statement was that at first Rodu Mal carried a business of his own, but later on he joined him as a partner. None of these facts is mentioned in the plaint nor there is any documentary evidence to support them. In addition there is no evidence to show that the bah in which the entries in question were made by Kirpa Ram belonged to Rodu Mal and Ramji Dass. For all these reasons we hold that Ramji Dass has not been able to establish that any part of the silver or loan bought or raised by Kirpa Ram belonged to him and consequently he had no right to maintain the suit.
The evidence to prove that Ram Lal was adopted by Rodu Mal is partly documentary and partly oral. (After considering the evidence the judgment continued). So it is clear that the fact that Ram Lai was adopted by Rodu Mal cannot be denied.
As regards the legal aspect of adoption it is now well settled that no ceremonies are necessary in the Punjab. This must particularly be the case in the Nabha State where the question of adoption was governed by a particular Hsdajat a perusal of which shows that what war. described in the Hadayats as adoption was in fact nothing more than an appointment of an heir as understood in the Customary Law: Section 5 of the Hadayats said that there was no restriction as regards age or bachelorship and an orphan could also be adopt-ed. Section 6 was to the effect that ceremonies were not essential for the validity of adoption and Section 7 recognised as valid the adoption of daughter''s or sister''s son provided all the reversioners of the adopter agreed to the adoption. Section 10 provided that the adoptee is not entitled To succeed to the collateral relatives of the adopter and Section 13 laid down that an adopted son who is described as the adopted heir, could no adopt an heir in his own turn.
We however, accept the contention of the Respondent''s counsel that if adoption is to be valid under Hindu Law formal giving and taking must be proved. Unfortunately the Plaintiffs did not adduce any direct evidence on this point, but this appears to me to be due either to the want of knowledge or negligence of the Plaintiffs'' counsel. Otherwise when it is mentioned in the deed of adoption that adoption did take place and Ramji Dass stated in so many words that Rodu Mal took Ram Lal in his lap, this means that formal giving and'' taking must have taken place. It should be remembered that this is not a case between persons who contest the right to property of the adoptive father. On the other hand it is a dispute between the alleged adopted son and a stranger. It is also significant that not a single question was put either to Ramji Dass or to Ram Lal in enrsexamination on the question of adoption and the impression that we formed is that the Defendant firm and its counsel were not serious in challenging either the legality or the factum of adoption.
Our view, therefore, is that strict proof regarding actual giving and taking need not be insisted upon in this case 3 and because of the facts and circumstances set out above, it should be presumed that there was giving and taking as required by Hindu Law. As we look at the matter formal ceremony of giving and taking is insisted upon with two objects. One that there should be no mistake either in the mind of the natural father of the adopted son or in that of the adoptive father that the child was going to be taken out of his natural family and was going to-be transplanted in the adopter''s family and the second that the fact should be known to everybody concerned and the brotherhood. In this case Ramji Dass''s statement and the contents of the deed of adoption executed by Rodu Mal constitute unmistakable evidence of the willingness of the natural father of Ram Lal i.e., Ramji Dass to consent to the adoption and as regards the publicity part of the whole affair the execution of the registered deed of adoption by Rodu Mal should be regarded as sufficient.
In Neelawa Dundappa Kohalli Vs. Gurshiddappa Madiwalappa Patanshetti, a Division Bench of the Bombay High Court held that where there are immediately after the alleged adoption statements in registered documents to the effect that the adoption had taken place, and the subsequent conduct of the parties on the same basis, the actual ceremony of adoption being so simple that it cannot be assumed that in spite of a desire to adopt there should have been any difficulty in going through the ceremony, the fact that adoption did take place must be taken as proved. Even though we think that the facts of that case were somewhat different from those of the present case, we are inclined to think that the principle enunciated in that case may well be valid in the present case. For all these reasons we hold that Ram Lai was validly adopted by Roda Mal.
The other point that remains to be consider ed is whether a decree could be passed in favour of Ram Lai without his obtaining a succession certificate. Counsel urged that according to Hindu Law when a person is formally adopted by Anr. he at once becomes a member of joint family with him and since a son succeeds to the father on the latter''s death by virtue of survivorship, no succession certificate should be insisted upon. This is no doubt correct proposition, but it must be remembered that even when a father and son are member of a joint family there is no presumption that every piece of property that the father possesses is joint family property and so far as the property which is not joint family property the father has unrestricted power of disposing it as he likes. In the present case there is nothing to show that the business that Rodu Mal was doing was a family business nor is there anything to indicate that he treated the business as joint family business. Nor is there evidence that Ram Lai worked with Rodu Mal in that business. This means that the debt to which the suit relates was not a part of joint family property and since it is definitely stated in the deed of adoption that Ram Lai would succeed to Rodu Mal''s property on his death Ram Lal''s right is based not on survivorship but on the deed of adoption which so far as Roda Mal''s property is concerned, must be looked upon as a will. accordingly no decree can be passed in Ram Lal''s favour unless and until he produces either a probate or a succession certificate.
These being the only points urged before us we allow Ram Lal''s appeal, set aside the decree of the Subordinate Judge and send back the case to him with the direction that Kam Lal be called up on to produce a succession certificate and when the succession certificate is produced, to decree the .suit in his favour. Ramji Dass appeal is dismissed. We leave the parties to bear their own costs. Par ties. counsel have been directed to cause their respective clients to appear before the Subordinate Judge on 17-2-1953.