Monoranjan Mallick, J.
1. This is a suit for partition.
The plaintiff's case may be briefly stated as follows :
One Satkori Chatterjee who was a Hindu governed by Dayabhaga School of Hindu Law died intestate leaving behind him his only heirs, namely, Smt. Chapala Chatterjee, widow, Uttam Kumar Chatterjee, also known as Arun Kumar Chatterjee, since deceased, Barun Kumar Chatterjee and Tarun Kumar Chatterjee, as three sons. The said Satkori Chatterjee was the absolute owner of the premises No. 46, Girish Mukherjee Road, Calcutta and is used the same as his dwelling house. The plaintiff and the defendant Nos. 1 and 2 and Smt. Gouri Chatterjee also known as Smt. Gouri Debi, since deceased, are aft heirs and legal representatives of the said Uttam Kumar Chatterjee. The said Uttam Kumar Chatterjee, Barun Kumar Chatterjee and Tarun Kumar Chatterjee being Respondent Nos. 2 and 3 respectively were the joint owners of premises No. 46, Girish Mukherjee Road, Calcutta each having one undivided 1/3rd share therein. Since about 1963 and until his death the said Uttam Kumar Chatterjee had been residing at premises No. 3, Moira Street, Calcutta. On 21st February 1967 the plaintiff Smt. Soma Chatterjee then known as Smt. Soma Chowdhury was lawfully adopted by the said Uttam Kumar Chatterjee by and under the registered Deed of Adoption. On 24th July 1980 said Uttam Kumar Chatterjee died intestate leaving behind his mother Smt. Chapala Chatterjee, defendant No. 1, his widow Smt. Gouri Chatterjee since deceased, his only son Sri Goutam Chatterjee and only daughter Smt. Soma Chatterjee, the plaintiff herein and his only heirs and legal representations. Late Uttam Kumar Chatterjee who was a well known film actor during his life time seized and possessed various immoveable properties particulars whereof are set out in schedule annexed as Schedule 'A' to the plaint. The immoveable properties set out in Part I of Schedule 'A' are situated at Calcutta within the jurisdiction of the Original Side and the immoveable properties set out in Part II of Schedule are situated outside the jurisdiction of the Original Side. Sometime in 1957-58 the said Uttam Kumar Chatterjee, since deceased, purchased a plot of land at No. 23A/394, Diamond Harbour Road, 'G' Block, New Alipore, Calcutta which was purchased by Uttam Kumar Chatterjee in the Benami of his wife Smt. Gouri Chatterjee. Subsequently, said Uttam Kumar Chatterjee constructed a three storied building in the said vacant plot being premises No. 23A/394, Diamond Harbour Road, New Alipore and the same has been rented out for a sum of Rs. 2800/- per month. The said property was absolute ownership property of the said Uttam Kumar Chatterjee to purchase the same and constructed the said building out of his personal income in benami of his wife Smt. Gouri Chatterjee. The plaintiff claims the said property as part of the estate of late Uttam Kumar Chatterjee.
2. Since the death of said Uttam Kumar Chatterjee, various disputes and differences have arisen between the plaintiff and the defendants and particularly the defendant Nos. 1 and 2 and the said Smt. Gouri Chatterjee and they are wrongfully denying and/or denied the right, title and interest of the plaintiff in the estate of said Uttam Kumar Chatterjee. The plaintiff requested them for all amicable partition of the said joint property left by said Uttam Kumar Chatterjee but they have wrongfully refused to do so. The plaintiff further requested the defendant Nos. 3 and 4 for an amicable partition of the joint property, namely, 46, Girish Mukherjee Road in which the said Uttam Kumar Chatterjee had an undivided one-third share but the defendant Nos. 3 and 4 have wrongfully refused to do so.
3. On or about 23rd April, 1981 Smt. Gouri Chatterjee died leaving behind her surviving the plaintiff and the defendant No. 2, Goutam Chatterjee as her heirs and legal representatives. The plaintiff has been informed that the said Smt. Gouri Chatterjee died leaving a Will whereby she appointed her son Sri Goutam Chatterjee as sole executor. The said Will has not yet been probated.
4. The plaintiff, therefore, claims partition of the joint family property of 46, Girish Mukherjee Road, claiming one-twelfth share therein and in respect of the properties other than the premises No. 46, Girish Mukherjee Road, the plaintiff claims share to the extent of one-fourth share.
5. The plaintiff, therefore, prays for declaration of the shares of the plaintiff's and the defendants in respect of the properties as mentioned in paragraph Nos. 12 and 13 of the plaint, for declaration that the premises No. 23 A/394, Diamond Harbour Road, 'G' Block, New Alipore standing in the name of late Smt. Gouri Chatterjee belongs to the personal estate of late Uttam Kumar Chatterjee and the said Smt. Gouri Chatterjee is a benamdar of the said Uttam Kumar Chatterjee and for partition of the joint family properties in accordance with the share as specified in paragraph Nos. 12 and 13 of the plaint by metes and bounds and separate allotment of the plaintiff of her share after partition thereof.
6. The defendant Nos. 1 and 2, Smt. Chapala Chatterjee and Sri Goutam Chatterjee have filed a joint written statement. However during the pendency of the suit Smt. Chapala Chatterjee has died. Smt. Gouri Chatterjee alias Gouri Devi also died before filing any written statement. According to the joint written statement, the case of defendant No. 1 and 2 are as follows :
7. The plaintiff was and still is the daughter of the Biswanath Chowdhury and Smt. Supriya Chowdhury and as such she has no right to describe herself as Soma Chatterjee as she has done in the cause title of the suit. There is no Municipal Holding bearing No. 46, Girish Mukherjee Road. The premises where the defendant No. 1 resides, bears the Municipal holding No. 46A Girish Mukherjee Road, Calcutta whereas the premises where the defendant No. 2 resides and late Gouri Devi resided, bears the Municipal holding No. 43A, Girish Mukherjee Road, Calcutta. The said defendants and the defendant Nos. 3 and .4 reside in the said, premises bearing Municipal holding No. 43A, Girish Mukherjee Road, Calcutta and the defendant Nos. 2 to 4 do not reside at premises No. 46, Girish Mukherjee Road, Calcutta. The defendant Nos. 2 is the only son of late Uttam Kumar Chatterjee and Smt. Gouri Chatterjee, since deceased. Upon the death of the late Satkori Chatterjee in 1959 a part of his residential house being re-numbered as premises No. 46, Girish Mukherjee Road, Calcutta came to devolve upon the defendant No. 1 herein and the other part being the re-numbered as 43A, Girish Mukherjee Road came to devolve upon Uttam Kumar Chatterjee and his two brothers, namely the defendant Nos. 3 and 4 jointly and in equal share. On the death of Uttam Kumar Chatterjee the said undivided share of Uttam Kumar Chatterjee in the said premises came to devolve upon his death on 23rd July 1980 on the defendant No. 1, his mother, the defendant No. 2, son Gautam Chatterjee and late Gouri Devi joint and equal shares and upon Gouri Debi's death on April 23, 1981 her share devolved only upon her only son and heir the defendant No. 2 in terms of the provision of a Will executed by Gouri Debi on or about 2nd April 1981 wherein the defendant No. 2 was named as the sole executor.
8. Though from 1963 onwards said Uttam Kumar Chatterjee started partly residing and spending most of the nights at premises No. 3, Moira Street, Calcutta, he almost daily visited and spent several hours at his ancestral house at Girish Mukherjee Road, Calcutta which constituted his ordinary place of residence.
9. The defendants deny that the plaintiff came to be duly and/or lawfully or at all adopted by Uttam Kumar Chatterjee. They state that the said pretended registered of Deed of Adoption is a sham document having been brought into existence under pressurisation from and undue influence of Smt. Supriya Chowdhury also known as Benu Chowdhury, the mother of the plaintiff herein. In any event, the said pretended deed of Adoption is void and/or no effect being in contravention of the provisions of Sections 7, 8 and 11(6) of the Hindu Adoptions and Maintenance Act, 1956. In particular, the said pretended Deed of Adoption was executed without the knowledge and consent of Gouri Devi. The father of the plaintiff Biswanath Chowdhury who alone was competent to give the plaintiff in adoption in terms of the mandatory requirements of Section 9 of the said Act did not participate or acquiesce in or consent to the giving of the plaintiff in adoption and that was so despite the fact that Biswanath Chowdhury was alive and not in any capacitated otherwise at the time. The said pretended Deed of Adoption was executed by and between Smt. Supriya Chowdhury and the said deceased Uttam Kumar Chatterjee. The condition expressly set out in Section 11(VI) of the said Act, namely, that the child must be actually taken and given in adoption by the parents concerned with intent to transfer the child from the family of his birth to the family of his adoption. The adoption given clearly gives a go-bye and there was clear contravention of or at any rate non-compliance of the provisions of the said section in the facts and circumstances of the case. In other words and/or in any event the giving and taking any adoption were conspicuous by absence of Smt. Gouri Chatterjee in the matter of said pretended adoption of the plaintiff by Uttam Kumar Chatterjee. Far from being transplanted to the family fold of Uttam Kumar Chatterjee from the family-fold of Biswanath Chowdhury, the plaintiff remained an alien and an outsider although vis-a-vis the family of the former. The plaintiff, in fact, resided and continued to reside in the custody of her mother Smt. Supriya Chowdhury at the latter's residence at No. 3, Moira Street, Calcutta at all material times and never acquired any nexus vis-a-vis at the ancestral residence of Uttam Kumar Chatterjee at Girish Mukherjee Road, Calcutta except as a stray visitor on rare occasions. The plaintiff never developed any contact with the family of Uttam Kumar Chatterjee and was never introduced to the members of his family including any of the defendants herein and Smt. Gouri Debi as a daughter of the family.
10. The defendants and Smt. Gouri Debi came to be first aware of the said pretended adoption of the plaintiff by Uttam Kumar Chatterjee years later in early January 1976 upon seeing an invitation card on the occasion of the plaintiff's marriage, wherein she had been described as the adopted daughter of Uttam Kumar Chatterjee. Gouri Debi immediately enquired of Uttam Kumar Chatterjee about the factum of the said pretended adoption and then protested since never had she been consulted and informed thereof and since she had firm objection to the taking of the plaintiff in adoption by her husband. Uttam Kumar Chatterjee then explained to Gouri Debi that the said document had to be executed under pressure exerted by Smt. Supriya Chowdhury, the mother of the plaintiff and further solely for giving some measure of respectability to the plaintiff and that since she had not given consent of the said adoption of the plaintiff, the same is invalid in law. Thereafter Court Debi consulted Mr. Prithwish Bagchi, the family lawyer of Uttam Kumar Chatterjee and learnt that the said pretended adoption was against the law and was invalid. Thereafter, Gouri Debi addressed a letter dated January 17, 1976 to the various persons including Uttam Kumar Chatterjee, his said brothers, the defendant Nos. 3 and 4 herein, his mother, the defendant No. 1, the brother of Gouri Debi, Mr. Prithiwish Bagchi, the cousin and friends of Uttam Kumar Chatterjee and also to the father of the bride-groom elect of the plaintiff being one Kanai Lal Goswami of No. 23B, Ballygunge Circular Road, Calcutta and sent the same by registered post. In the said letter it was, inter alia stated that the said pretended adoption by late Uttam Kumar Chatterjee had not been effected with the consent and knowledge of the said Gouri Debi either in writing or oral and as such neither Gouri Debi nor her son, the defendant No. 2 was bound by the said pretended Deed of Adoption and further since Smt. Supriya Chowdhury had been divorced from her husband, it was not clear to Gouri Debi how the said pretended Deed of Adoption could have been executed. Gouri Debi's letter came to be received by the said addressees but none of whom replied the said letter at about the truth of correctness of its contents. Gouri Debi had a notice published in the Official Gazette dated 29th January 1976 stating therein that she had never any knowledge of the said pretended adoption of the plaintiff by late Uttam Kumar Chatterjee and in the process she had never given consent thereof. As the plaintiff never was or ever became the daughter of late Uttam Kumar Chatterjee there cannot be any question of Uttam Kumar Chatterjee leaving behind the plaintiff as his only daughter or as one of the legal representatives as alleged.
11. As regards the property being premises No. 23A/394 Diamond Harbour Road, Calcutta, New Alipore is concerned, the defendants state that it was the personal and absolute and exclusively owned property of Gouri Devi and on her demise the ownership has devolved upon her only son and heir being the defendant No. 2 who also obtained the same under Gouri Debi's last Will and testament. It is also contended that the land was acquired and the construction was made with the own money of Gouri Debi and after such construction on or about May 4, 1967 a tenancy agreement was entered into between one Biswanath Poddar with Gouri Debi and the rent of the said premises was all along being collected by late Gouri Debi. The defendants also contended that the plaintiff had willfully and wrongfully excluded with ulterior motive flat No. 11 May fair Road, Calcutta though ostensibly in the name of Sm. Supriya Chowdhury was really owned and possessed by Uttam Kumar Chatterjee. The defendants further state that the flat at Chetak Co-operative Housing Society Ltd. at Bombay also belonged to Uttam Kumar Chatterjee exclusively though it was ostensibly in the joint name of Uttam Kumar Chatterjee and Smt. Supriya Chowdhury. The defendants also contend that many of the personal effects and immoveable properties of Uttam Kumar Chatterjee are still lying with Sm. Supriya Chowdhury.
12. The defendants thus contend that the plaintiff not having at any right, title and interest into the estate of Uttam Kumar Chatterjee, there is no question of any of the defendants refusing for the amicable partition of the said properties and the plaintiff's suit for partition is liable to be dismissed.
13. The defendants also deny that the plaintiff has any manner of possession of any of the properties of late Uttam Kumar Chatterjee and the said suit for partition simplicitor is liable to be dismissed.
14. The defendant Nos. 3 and 4, the two brothers of late Uttam Kumar Chatterjee also contest the suit by filing a written statement. The contentions raised by the defendant Nos. 3 and 4 are similar. They also deny that the plaintiff is the adopted daughter of late Uttam Kumar Chatterjee. They also claim that the said pretended Deed of Registered Adoption is a sham and dishonest document and states that the execution of the same was the out-come of considerable pressurisation of Smt. Supriya Chowdhury also known as Benu Chowdhury being the mother of the plaintiff. They also allege that the said pretended registered Deed of Adoption is on the breach of provisions of Hindu Adoption and Maintenance Act and as such the same is void. They also claim that the plaintiff has not correctly set out or described the various properties owned and possessed by Uttam Kumar Chatterjee in the plaint. They also claim that the premises Nos. 23A/394 Diamond Harbour Road, G Block New Alipore at all material time constituted the personal property of Gouri Devi during her life time and now constituted the property of the defendant No. 2. They also reiterate that the plaintiff was and is the outsider to the family of Uttam Kumar Chatterjee and is therefore not entitled to his estate and the estate of Uttam Kumar Chatterjee devolved upon late Gouri Devi and his son and upon Gouri Debi's death, the defendant No. 2 is the absolute owner.
15. From the pleadings, the following issues have been framed.
(1) Is the plaintiff Soma Chatterjee, legally adopted daughter of late Uttam Kumar Chatterjee ?
(2) Is the premises No. 23A/394 Diamond Harbour Road the personal, absolute and exclusively own property of late Gouri Devi Chatterjee as stated in paragraph 10 of the Written Statement ?
(3) Was late Uttam Kumar Chatterjee the joint owner of premises No. 46, Girish Mukherjee Road ?
(4) Is the plaintiff entitled to claim partition of the Estate of late Uttam Kumar Chatterjee ?
(5) To what relief, if any, are the parties entitled ?
Issue No. 2 : So far as the property being premises No. 23A/394 Diamond Harbour Road, New Alipore is concerned, it is the clear case of the defendants that it is the self acquired property of late Gouri Debi and it was not the property of late Uttam Kumar Chatterjee.
16. The plaintiff Smt. Soma Chatterjee has in her evidence stated that the said New Alipore property is the property of late Uttam Kumar Chatterjee, her adopted father.
17. On behalf of the defendants both oral and documentary evidence had been produced in support of their claim that the land was acquired by Gouri Debi on or about July 29, 1955 with the money given to Gouri Debi by her grand father late Nagendra Nath Ganguly; that on the occasion of purchase a part of consideration money being Rs. 8,000/- out of Rs. 18,000/- was left unpaid and for acquiring the same a deed of mortgage was executed in respect of the land as the mortgagor in favour of the vendor one Smt. Manjusree Dutta who became the mortgagee, which document was executed also on July 29, 1955. On May 7, 1956 a Deed of Release came to be executed by the vendor Smt. Manjusree Dutta in Gouri Devi's favour being unpaid balance of consideration money by Gouri Debi. The evidence has also been given that the construction of building was completed partly with the money of Gouri Debi and partly with the money gifted by her husband late Uttam Kumar Chatterjee, The evidence has also been given that it was Smt. Gouri Debi who let out the premises first to Attika & Co. and thereafter to Biswanath Poddar and Smt. Gouri Debi all along realised the rent of the said building let out. It has also been proved that in the Corporation record the name of Gouri Debi has been recorded as the owner thereof.
18. At the time of hearing, however, on behalf of the defendants it is urged that in view of the provision of Section 4 of the Benami Transaction (Prohibition) Act 1988 the plaintiff cannot file or continue with the suit to enforce any right in respect of the property held benami in the name of late Gouri Debi and Sub-section (1) of Section 4 clearly bars such a suit. Sub-section (1) of Section 4 of the Benami Transaction (Prohibition) Act 1988 reads as follows :--
"4(1) No suit, claim or action to enforce any right in respect of any property held Benami against the person in whose name the property is held or against any other person shall lie by or on behalf of a person claiming to be the real owner of such property".
19. When the plaintiff files this suit claiming to be one of the heirs of late Uttam Kumar Chatterjee that the New Alipore property standing in the name of Gouri Debi was actually acquired by late Uttam Kumar Chatterjee with his own money and late Gouri Debi was merely the Benamdar then this is a suit filed by one who claims to be one of the legal representatives of the alleged real owner praying for a declaration that Uttam Kumar Chatterjee her adopted father was actually the real owner of the property. After the Benami Transaction (Prohibition) Act 1988 has come into force such a suit praying for declaration that Uttam Kumar Chatterjee was the real owner of the property by one claiming to be one of the heirs of late Uttam Kumar Chatterjee has clearly been prohibited by Section 4(1). In Mithilesh Kumari v. Prem Behari Kharo, the Supreme Court has held that the Benami Transactions (Prohibition) Act 1988 is retro-active and law of Section 4 would apply even when the appeal is pending in Supreme Court. So there is no doubt that it would attract a suit being filed before the date on which it has came into force. No such suit can be filed or continued claiming that property in question was actually acquired by late Uttam Kumar Chatterjee as the real owner and late Gouri Debi was the benamdar. In that view of the matter even if the plaintiff succeeds in establishing that she is the adopted daughter of late Uttam Kumar Chatterjee she cannot get the declaration that the real owner of the property being premises No. 23A/394, Diamond Harbour Road, New Alipore was of late Uttam Kumar Chatterjee and not of late Gouri Debi in whose name the property admittedly stood since its acquisition till her death in 1981.
20. Therefore, this issue is answered against the plaintiff.
Issue No. 3 : The plaintiff has claimed the premises No. 46, Girish Mukherjee Road to be part of the estate of late Uttam Kumar Chatterjee and claims that in the suit property late Uttam Kumar Chatterjee had 1/3rd share.
21. On behalf of the defendants, it is contended that the original holding No. 46 which was owned by late Satkori Chatterjee, the father of late Uttam Kumar Chatterjee and the defendant Nos. 3 and 4 is no longer in existence and has been sub-divided into two holdings, namely, 46A Girish Mukherjee Road and 43A, Girish Mukherjee Road, that 46A Girish Mukherjee Road is the exclusive property of the defendant No. 1 Smt. Chapala Chatterjee, widow of late Satkori Chatterjee since deceased and the premises No. 43A, is the joint undivided property of late Uttam Kumar Chatterjee and the defendant Nos. 3 and 4 in which Uttam Kumar Chatterjee had undivided 1/3rd share.
22. The plaintiff could not produce any sufficient evidence to controvert the above claim of the defendants. Therefore, I have to accept the contention of the defendants that late Uttam Kumar Chatterjee had undivided 1/3rd share in the present premises No. 43A Girish Mukherjee Road only and if the plaintiff can prove, that she is the adopted daughter of late Uttam Kumar Chatterjee then she can get the relief sought for in this suit along with the other properties described in the schedule to the plaint other than the New Alipore property which cannot be treated to be the part of the estate of late Uttam Kumar Chatterjee.
23. Therefore, the issue under consideration is thus disposed of.
Issue No. 1 : The main issue to be decided in this suit is whether the plaintiff has been lawfully adopted as the adopted daughter of late Uttam Kumar Chatterjee as claimed by the plaintiff since 21st February 1967.
24. There is no doubt that the plaintiff has proved a registered Deed of Adoption dated 21-2-1967 executed by Smt. Supriya Chowdhury, her mother for and on behalf of her natural father Biswanath Chowdhury and by late Uttam Kumar Chatterjee, her alleged adopted father. She has also produced and executed a power of Attorney executed by Biswanath Chowdhury in favour of Smt. Supriya Chowdhury by which Biswanath Chowdhury purports to give Supriya Chowdhury the mother of the plaintiff, the authority, amongst others, the authority to give the plaintiff in adoption to some respectable Brahmin family.
25. The defendants have seriously challenged the legal validity of those documents and the main contention of the defendants are--
(i) Smt. Supriya Chowdhury did not have the legal authority to give the plaintiff in adoption when Biswanath Chowdhury her natural father was very much alive and not in any way capacitated to give the alleged adoption.
(ii) There is no consent of late Gouri Debi, wife of late Uttam Kumar Chatterjee to such adoption.
(iii) There was no ceremony of giving and taking and that the purported Deed of Adoption has no legal validity to effect a valid adoption of the plaintiff and the plaintiff cannot by virtue of the pretended Deed of Adoption claim any interest in the estate of late Uttam Kumar Chatterjee.
26. On the other hand the plaintiff has challenged all the above contentions. Their claim is that when Biswanath Chowdhury had given the power of attorney to Smt. Supriya Debi by the deed Ext. B and when Smt. Supriya Devi as the authorised agent of the father of Soma Chatterjee performed the ceremony of giving and taking in accordance with law on 21st February 1967 it was in effect the adoption given by the father of Soma and Smt. Supriya Chowdhury was only acting as constituted attorney of Biswanath Chowdhury in the matter of giving such adoption. It is also contended that there was valid consent of Smt. Gouri Devi, that in the deed of adoption there is clear recital that late Uttam Kumar Chatterjee had taken the consent of his wife, that Gouri Devi was personally present along with the defendant Nos. 3 and 4 at the ceremony of giving and taking on 21st February 1967 and that the fact that long after such giving consent, Smt. Gouri Devi with some ulterior motive sought to assert that she did not give consent would not affect the valid adoption when at the time of adoption she had given consent to her husband to adopt the plaintiff and participated in the ceremony of adoption.
27. The third contention of the defendant that there is no valid adoption is contested by the plaintiff and it is urged that there is valid adoption and as the deed of adoption Ext. A is by a registered instrument there is a presumption that the adoption is Valid and the defendant having failed to rebut that presumption by adequate evidence it cannot but be held that the adoption is valid. It is also urged that the adoption had taken place on 21st February 1967 and Smt. Gouri Devi did not file any suit for challenging such adoption within three years from her alleged date of knowledge in January 1976 and consequently in this suit neither Gouri Devi nor any person claiming through her can challenged the validity of the adoption.
28. As admittedly the parties are Hindus governed by Dayabhaga School of Hindu Law and as this adoption is alleged to have taken place after the Hindu Adoption and Maintenance Act, 1956 has come into force the provision of the above Act shall govern this adoption. Section 16 of the Hindu Adoption and Maintenance Act reads as follows :
"Whenever any document registered under any law for the time being in force is produced before any court purporting to record an adoption made and is signed by the person giving and the person taking the child in adoption, the court shall presume that the adoption has been made in compliance with the provisions of this Act unless and until it is disproved."
29. Section 16 of the Hindu Adoption and Maintenance Act, 1956 lays down the rule of presumption which requires that when there is a duly registered deed of adoption the court shall presume that the adoption has been made in compliance of the provisions of the Act unless and until it is disposed. This is no doubt a rebuttable presumption and the onus is upon the person challenging such adoption to rebut it. But on behalf of the defendant it is urged that the defendants have rebutted the presumption laid down in Section 16 by adducing sufficient evidence. It is also urged when in law there was no valid adoption as the alleged adoption was not given by the father of the plaintiff and that wife of the adoptive father did not give her consent to the adoption then the Section of 16 would not be attracted as it is not an adoption in accordance with law. It is also urged that initial onus is upon the plaintiff to prove the factum as well as validity of adoption. I would consider these questions in detail at the appropriate stage.
30. But before entering into the evidence adduced by the parties regarding the factum and validity of the adoption I would dispose of the plaintiff's preliminary objection that the defendants cannot challenge the adoption, as Gouri Devi did not take any step after she is alleged to have come to know about the adoption in January 1976 to set it aside by filing a properly constituted suit and the defendants by way of defence in this suit cannot challenge such adoption after such suit has become barred by limitation.
31. Any person challenging adoption has to file, the suit within a period three years from the date of knowledge of adoption as is provided in Article 57 of the Limitation Act. It is true that within 3 years from the alleged date of knowledge in January 1976 Smt. Gouri Devi did not file any suit for setting aside the adoption.
32. Even if it be accepted as the clear proposition of law that any person praying for setting aside adoption has to file the suit for that purpose within three years from the date of knowledge of such adoption yet such party's defence in a suit filed by the plaintiff claiming title on the basis of the adoption to challenge such adoption as invalid cannot be barred.
33. I am of the view that the defendants in this suit for partition can take the defence that the deed of adoption is a void document and this defence is not barred only because Smt. Gouri Devi did not take any step within the period of limitation to file a suit for setting aside the adoption. A void deed can always be challenged and for such challenging a void deed there is no limitation particularly when the challenge is made way of defence, in a suit filed by the plaintiff claiming title and partition on the basis of such deed of adoption. The decisions of Syed Rasul v. Md. Maulana in AIR 1977 Kerala page 173, Raghavamma v. Chenchamua, and Sadanand v. Vimla, AIR 1982 Orissa 13 support this view. Therefore, I am unable to hold that the defendants cannot challenge the factum and validity of adoption in this suit by way of defence in a suit filed by the plaintiff claiming title and partition on the basis of the adoption. However the plaint of Title Suit No. 459 of 1980 filed by Smt. Gouri Devi, Smt. Chapala Devi and Sri Gautam Chatterjee which has been transferred to Original Side of High Court Calcutta as Extra-Ordinary Suit No. 8 of 1981 is a suit filed by them sometime before the filing of the present suit in which Smt. Gouri Devi averred that she had not given consent to the alleged adoption. That suit is, however, still pending. However, under any circumstances the defence of the defendant in this suit challenging the adoption is in no way barred and has to be considered on merits.
34. I would now enter into the question as to whether thus there was in fact an adoption as alleged by the plaintiff and whether the purported deed of adoption creates a valid adoption of the plaintiff as the adopted daughter of late Uttam Kumar Chatterjee. In order to appreciate the contentions raised by the parties the following Sections of the Hindu Adoption and Maintenance Act 1956 are reproduced below :--
Section 6 : No adoption shall be valid unless--
(i) the person adopting has the capacity, and also the right, to take in adoption;
(ii) the person giving in adoption has the capacity to do so;
(iii) the person adopted is capable of being taken in adoption; and
(iv) the adoption is made in compliance with the other conditions mentioned in this Chapter.
Section 7 : Any male Hindu who is of sound mind and is not a minor has the capacity to take a son or a daughter in adoption :
Provided that, if he has a wife living, he shall not adopt except with the consent of his wife unless the wife has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound mind.
Explanation--If a person has more than one wife living at the time of adoption, the consent of all the wives is necessary, unless the consent of any one of them is unnecessary for any of the reasons specified in the preceding proviso.
Section 9 : (1) No person except the father or mother or the guardian of a child shall have the capacity to give the child in adoption.
(2) Subject to the provisions of Sub-section (3) and Sub-section (4) the father, if alive, shall alone have right to give in adoption, but such right shall not be exercised save with the consent of the mother unless the mother has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound mind.
(3) The mother may give the child in adoption if the father is dead or has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound mind.
(4) Where both the father and mother are dead or have completely and finally renounced the world or have abandoned the child or have been declared by a court of competent jurisdiction to be of unsound mind or where the parentage of the child is not known, the guardian of the child may give the child in adoption with the previous permission of the court to any person including the guardian himself.
(5) Before granting permission to a guardian under Sub-section (4), the court shall be satisfied that the adoption will be for the welfare of the child, due consideration being for this purpose given to the wishes of the child having regard to the age and understanding of the child and that the applicant for permission has not received or agreed to receive and that no person had made or given or agreed to make or give to the applicant any payment or reward in consideration of the adoption except such as the court may sanction.
Explanation -- For the purposes of this section--
(i) the expressions "father" and "mother" do not include an adoptive father and adoptive mother;
(ii) "guardian" means a person having the care of the person of a child or of both his person and property and includes--
(a) a guardian appointed by the will of the child's father or mother, and
(b) a guardian appointed or declared by a court and
(iii) "court" means the city civil court or a district court within the local limits of whose jurisdiction the child to be adopted ordinarily resides.
Section 11 : In every adoption, the following conditions must be complied with--
(i) if the adoption is of a son, the adoptive father or mother by whom the adoption is made must not have a Hindu son, son's son or son's son's son (whether by legitimate blood relationship or by adoption) living at the time of adoption;
(ii) if the adoption is of a daughter, the adoptive father or mother by whom the adoption is made must not have a Hindu daughter or son's daughter (whether by legitimate blood relationship or by adoption) living at the time of adoption;
(iii) if the adoption is by a male and the person to be adopted is a female, the adoptive father is at least twenty one years older than the person to be adopted;
(iv) if the adoption is by a female and the person to be adopted is a male, the adoptive mother is at least twenty one years older than the person to be adopted;
(v) the same child may not be adopted simultaneously by two or more persons;
(vi) the child to be adopted must be actually given and taken in adoption by the parents or guardian concerned or Under their authority with intent to transfer the child from the family of its birth or in case of an abandoned child or a child whose parentage is not known, from the place or family where it has been brought up to the family of its adoption :
Provided that the performance of datta homem shall not be essential to the validity of an adoption.
35. I would now take up the question as to whether the adoption given by Sm. Supriya Devi of her daughter Soma to Uttam Kumar Chatterjee as pleaded in the plaint is in accordance with the provisions contained in Section 9 and Section 11 of the Hindu Minority and Guardianship Act. Mr. Gautam Chakravorty, learned Counsel appearing for the plaintiff has urged that there has been proper compliance of the provision of Sub-sections (2) and (3) of Section 9 of the Act, that under Section 9(2) the father as long as he is alive and has not completely and finally renounced the world or has ceased to be a Hindu or has been declared by the competent court of law to be of unsound mind has the authority to give the son or daughter in adoption but in this case the father has executed Ext. B a valid power of attorney appointing Sm. Supriya Devi as his constituted attorney for the purpose of giving the adoption of his daughter Soma and when Sm. Supriya Devi gave Soma in adoption to Uttam Kumar Chatterje'e and the ceremony of giving and taking was done on 25th February 1967 in presence of the witnesses by Smt. Supriya Devi as the constituted attorney of Biswanath Chowdhury, the father of the girl then it is in essence and adoption by the father through her constituted attorney and it is not an adoption by the mother and consequently the provision of Section 9 have been fully complied with and when the Deed of adoption Ext. A also clearly recites that Sm. Supriya Devi was given the adoption on the basis of the Power of attorney executed by her husband then the contention of the defendant that Supriya Devi had no capacity to give adoption of Soma to late Uttam Kumar Chatterjee is not a valid contention and must be rejected.
36. Ext. 'B' dated 6-2-67 has been executed in the form of an Agreement entered into between Smt. Supriya Devi and Sri Biswanath Chowdhury. By that Deed, Biswanath Chowdhury, the natural father of Soma who after his divorce with Supriya Devi has again re-marriage and has been living with his wife and children in Delhi has recited that as Smt. Supriya Devi the mother and natural guardian of Soma had all along maintaining the daughter and the expenses of her education he would not claim the Guardianship of the person of the property of the minor whereby her present mode of education, association and aspiration might be disturbed. The Deed thereafter recites as follows :--
"It is further agreed that the second party (i.e. Supriya Devi) may for the benefit of the minor and for her future well being and protection place her in the midst of reputed families of India or England for being trained up as a daughter of noble and dignified family, and for that purpose, may, if necessary, give her in adoption to any family or person of such very high repute. Provided always the adoption must be by a Brahmin belonging to a reputed Brahmin family. The second party assures and undertakes not to do anything whereby the future of the girl may be prejudiced or the status of the father may be lowered."
On the basis of this the Deed Ext. 'B' delegating the power to give adoption of the daughter Soma, Supriya Devi claims to have been given the adoption of 25th February 1967 allegedly by performing the ceremony of giving and taking and also by executing a registered deed dated 21-2-67 signed by both Smt. Supriya Devi and late Uttam Kumar Chatterjee alias Arun Kumar Chatterjee in presence of two witnesses including Sri Prithwis Bagchi, Advocate who it is disclosed has prepared both the Deed of Adoption Ext. A and Deed of Agreement Ext. 'B'. Ext. 'A' also recites that Supriya Devi has been given the authority by Biswanath Chowdhury for giving the minor daughter Soma in adoption to a Hindu Brahmin of good repute and for that purpose for ensuring her better future, she has given her daughter Soma in adoption to Uttam Kumar Chatterjee and has declared that henceforth the minor daughter Soma shall and has declared that henceforth, the minor daughter Soma shall be the adopted daughter of the first party, namely, Uttam Kumar Chatterjee and be his other child with all rights of heirship and succession and be governed by the same Gotra of his adoptive father and be known as Soma Chatterjee, or Soma Chattopadhyay and as the father of the said minor, daughter the first party shall be her legal guardian for all purposes.
37. On behalf of the defendants it is streneously argued that the adoption is invalid in as much as Smt. Supriya had no capacity to give Soma in adoption because Biswanath Chowdhury was and is still alive and Biswanath Choudhury has not given Soma in adoption and that Section 9(2) clearly provides that subject to Sub-section (3) and (4) of Section 9, the father if alive has alone have the right to give in adoption. It is also argued that if Sub-section (2) and (3) of Section 9 are read together it can only mean that the father can be incapacitated by any of the exceptions mentioned in Sub-section (3) and that when Section 9 clearly provides as long as father is alive and is not in any way incapacitated then when the incapacitated as contained in Sub-section (3) of Section 9 are not attracted, then mother cannot give any adoption because the law confers upon father the right to give in adoption as long as he is alive and as long as he is not in capacitated in any way as mentioned in Sub-section (3) of Section 9.
38. The following observations of Molla's Hindu Law (15th Edition) page 1098 has been referred to me by the learned Advocate for the defendants which reads thus--
"The mother cannot give the daughter in adoption while the father is alive and capable of consent without the permission of the father. The mother can have the right if the father is dead or disabled from giving consent".
It is therefore urged that the embargo upon the mother is absolute and mandatory and the fact that father Biswanath Chowdhury and Supriya Devi are divorced is all little consequence.
39. My attention has also been drawn to Raghabhacharia's Hindu Law, (8th Edition) page 1056 which reads as follows :
"The position of the mother who is living separate from the father under a decree of judicial separation or divorce is also the same in this regard and she is incompetent to give the child in adoption during the life time of the husband".
40. It is also urged that Ext. B the purported Deed of authorisation of Biswanath Chowdhury so far as it delegates to Supriya the authority to give in adoption is against the law.
41. In support the learned Advocate for the defendants makes the following submissions, namely:
(i) the language of Section 9(2) and Section 9(3) is specified and except in specified cases, the father is to give in adoption and mother cannot be substituted for the father except for the physical act of giving.
(ii) Hindu law in adoption, however, recognises the doctrine of limited delegation, namely, the delegation of the physical/ ministerial/corporeal act of giving which has been allowed by the courts in cases whereby the father is in any way capacitated because of illness or of conversion of Islam or such other grounds. He refers to the cases in Viziaramgam v. Lakshuman reported in 4 Bombay HCR., O.C. 244, Shyam Singh v. Santa Bhai 25 Bom. 554, Vijjama v. Surjya Prakash, AIR 1942 Madras 379 and Laxman v. Rup Kanwar, . The gist of the above decisions which has been
affirmed by the Supreme Court under Laxman v. Rup Kanwar is that (a) the delegation only apply to the physical or ministerial or corporeal act of giving orreceiving.
(iii) Such delegation would follow only in case of physical infirmity or such other causes ; the pre-condition noted to be complied in cases of obligation was that there had to be an agreement between the natural and adoptive parent of giving or receiving in adoption.
(iv) In the instant case, there was no prior agreement between Biswanath Chowdhury and late Uttam Kumar Chatterjee who alone could support the delegation.
(v) This law of delegation has not been changed and the law as codified in Hindu Adoption and Maintainance Act 1956 has followed it by enacting the same provision for delegation in Section 11(vi) of the Act and consequently it must be held that the natural father is to selects the adoptive father and only thereafter the ministerial act could be performed under the father's authority by the concerned person who has been authorised to give including the mother.
(vi) The evidence discloses that the selection of Uttam Kumar Chatterjee is the act of Smt. Supriya Devi and not of Biswanath Chowdhury and because Supriya Devi is purported to give Soma in adoption on her own volition and intended adoptive father is only her selection then the provision of Section 9(3) is violated and the adoption by Supriya during life time of Biswanath Chowdhury is therefore invalid.
42. I have considered the submissions made by the learned Advocate for the defendants in the light of the evidence adduced in this case. As regards the documents Ext. B and Ext. A it is only Supriya Devi who has given her evidence in this Court as regards the circumstances in which the said deeds had been executed and the adoption given. On clearly analysing the evidence of Smt. Supriya Devi in this respect, I find that Supriya Devi has clearly stated in her evidence that Uttam Kumar Chatterjee long before adoption used to love Soma as her child and while she along with Uttam Kumar and Soma was holidaying in Ranikhet, Uttam Kumar expressed his definite intention to take Soma in adoption that she had no objection but as Biswanath Chowdhury was the natural father she contacted trunk telephone to Delhi as it was the primary duty of the father to give adoption that he requested Biswanath Chowdhuri over telephone to come to Calcutta, that Biswanath Chowdhury came to Calcutta and she had the discussions with Biswanath Chowdhury and after such discussion Biswanath Chowdhury executed the Deed of Ext. B which was prepared by Mr. Prithwis Bagchi and after executing that deed he left for Delhi.
43. As regards the validity of the Deed Ext. B the defendants have no right to challenge. It is only Biswanath Chowdhury who can alone challenge the validity of the said deed. For. these long years and being fully aware that on the basis of the authority given by him Supriya Devi had given Soma in adoption to late Uttam Kumar Chatterjee, Biswanath Chowdhury did not ever challenge such giving of adoption by Supriya Devi under the authority given by him by Ext. B. Therefore, in this suit I have to consider Ext. B to be a deed validly executed by Biswanath Chowdhury. There can be no doubt that Biswanath Chowdhury by that deed entrusted his divorced wife Supriya Devi with the guardianship of Soma and to make of necessary expenses for her up keep and education and Supriya Devi also agreed to exonerate Biswanath Chowdhury for such maintenance. Therefore, by that Deed Biswanath Chowdhury agreed that Supriya Devi would act as her guardian and declared that he would not claim any guardianship of Soma as the natural guardian. As Biswanath Chowdhury had re-married and have been living with his new wife and children, such a deed would only safeguard the interest of the Supriya Devi if at any future time Biswanath Chowdhury wanted the custody and guardianship of the daughter being the father and natural guardian of Soma. Over and above, that deed has given Supriya Devi the authority to give in adoption in some respectable Brahmin family. It is to be considered as to whether such deed giving authority to mother to give the daughter in adoption which is a general authority subject to certain limitations contained in Ext. B violates the provision of Section 9 and is therefore be considered as the invalid authority.
44. In my view this delegation of the authority to the mother by the father of Soma does not violate the provision of Section 9(2). When under such authority Supriya Devi selects Uttam Kumar Chatterjee who is admittedly a member of Hindu Brahmin family aad whom she considers to be a person of a respectable family, then the adoption is in accordance with the authority given by Biswanath Chowdhury to Supriya Devi by the deed Ext. B. Only because there was no prior agreement between Uttam Kumar and Biswanath Chowdhury and only because in that deed no specific authority was given to Supriya to give the daughter Soma in adoption to Uttam Kumar, the authority cannot be an invalid authority.
45. The decisions which have been referred to me by the learned Counsel for the defendants and which has been clearly enunciated in the Supreme Court decision of Laxman v. Rup Kanwar is the
enunciation of the Hindu Law of Adoption before its codification by the Hindu Adoptions and Maintenance Act 1956. Under the Hindu Law as it is stood prior to the above enactment as long as father was alive he alone had the right to give the child in adoption but the father can delegate the physical or ministerial or the corporeal act of giving to any person not only to mother but also to any other person. In the case of 4 Bom. HCR there was such delegation as the parent was unwell. In the case of 25 Bom. 551, the ministerial act of handing over the child was delegated to the brother as the parent was converted to Islam. Under the Hindu Law as its stood prior to the codification of Hindu Adoption and Maintenance Act there was the necessity of prior agreement between the natural and the adoptive parent for adoption as the pre-condition for the delegation of the physical of the ministerial or the corporeal act of giving or receiving the adoption. But when the law has been codified and we shall have to follow the law as codified while considering an adoption made after the Hindu Adoption and Maintenance Act came into force. Under Sub-section (2) of Section 9 the father can given in adoption but such right shall not be exercised save with the consent of the mother. Under Sub-section (3) mother can give the child in adoption if the father is death, or has been completely or finally renounced the world or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound mind.
46. In this case Sub-section (3) is not attracted. Only Sub-section (2) of Section 9 is attracted. Mr. Chakraborty has rightly urged that it is not a case in which Supriya Devi has exercised the right to give her daughter Soma under Sub-section (3) of Section 9 and she has exercised her right under the authority given by the father Biswanath Chowdhury and when the father gives the mother such authority and when even if the father has to give adoption she has to obtain the consent of the mother then this authority given by the father to the mother for giving the adoption under such authority and as the agent of the father is really the adoption given by father.
47. I am of the view, that there is nothing in Section 9(2) prohibiting the father to give the mother the authority to give the child in adoption for and on his behalf and as his agent. General law of agency is not expressly prohibited. When an owner of the property can appoint a constituted attorney to act on his behalf and even to transfer his own property in favour of the another, then the law of agency treat such act as the valid act of the owner himself, then in this case if the father gives the authority to the mother to give the child in adoption in a respectable Brahmin family and if the mother under that authority selects Uttam Kumar Chatterjee as the member of a respectable Hindu Brahmin Family and gives the daughter in adoption on the basis of that authority of Ext. B, then under the law it is the adoption of the father. If that authority is abused then it is only the father who can challenge such adoption on the ground that the mother has violated the authority given to him and has given the adoption either in derogation or in excess of that authority. The defendants cannot challenge such authority.
48. I am of the view that under the law as indicated in Section 9(2), there is no obligation for the parents to have a prior agreement regarding such adoption. Under Clause (vi) of Section 11 the child to be adopted must be actually given and taken in adoption by the parent or guardian concerned or under their authority. This authority of the physical ministerial or corporeal act of giving or receiving is a clearly different matter. Under that provision the authority can be given even to a third party. But in this particular case when the father appoints mother to act as agent and to give the daughter in adoption under that authority imposing certain terms and conditions as to how the mother would exercise such authority then the adoption on the basis of that authority is the adoption of the father.
49. In that view of the matter I am unable to accept the contention of the defendants that the adoption of Soma is invalid on the ground that Biswanath Chowdhury even though alive and not in any way capacitated, did not give the adoption. I am of the view that Smt. Supriya Devi had the legal authority from the father of Soma to give the adoption as his agent and this adoption must be treated as the adoption of Biswanath Chowdhury performed by Smt. Supriya Devi under Biswanath Chowdhury's authority.
50. The main legal ground of the defendants to challenge the adoption is the lack of consent of Smt. Gouri Devi, the wife of late Uttam Kumar Chatterjee in the adoption of Soma. It is the clear case of the defendants that Sm. Gouri Devi never consented to the alleged adoption, that there was no ceremony of giving and taking on 21-2-1967 as alleged by the plaintiff and her witnesses and that as soon as Smt. Gouri Devi came across the invitation letter of Soma's marriage sometime in January 1976 she then and there protested to her husband, contacted Mr. Prithwish Bagchi, the Advocate of Alipore Court who had prepared the deed of adoption Ext. A and on his advise wrote letters by registered post with acknowledgment due to Uttam Kumar Chatterjee, Supriya Devi, her mother-in-law Smt. Chapala Chatterjee, her brothers-in-law Tarun Kumar Chatterjee and Barun Kumar Chatterjee and other relatives including Soma's would be father-in-law denying the factum of adoption and also asserting that she did not give any consent to any such adoption. She also declared in the Calcutta Gazette that she did not give any consent to the alleged adoption of Soma by Uttam Kumar Chatterjee.
51. Under Section 7 of the Hindu Adoption and Maintenance Act any male Hindu of sound mind and not a minor can take a son or a daughter in adoption provided that if he was a wife living he shall not adopt except with the consent of his wife, unless that wife has renounced the world, ceased to be a Hindu or has been declared by a competent court of law to be of unsound mind. In this case, Gouri Devi did not come under any of the excepted categories of wife. So, the adoption of Soma by Uttam Kumar Chatterjee has to be with the consent of Smt. Gouri Devi.
52. In order to prove that Smt. Gouri Devi had given her consent and Uttam Kumar Chatterjee prior to taking Soma in adoption has taken Smt. Gouri Devi's consent the plaintiff has relied upon the recital of Ext. A where it is mentioned that Late Uttam Kumar Chatterjee had obtained his wife's consent. She has also led evidence of her mother Smt. Supriya Devi, the evidence of the alleged priest who performed the religious ceremony of adoption and Mr. Debesh Ghosh and Mr. Ashim Sarkar who claim to have attended the ceremony of adoption on 21st February, 1967 at 3, Moira Street, Calcutta. The sum and substance of this evidence is that at the time when the ceremony of adoption was held Smt. Gouri Devi was present. If this evidence was to be believed then this would amount to her implied consent to the taking of adoption of Soma by her husband Uttam Kumar Chatterjee. This evidence has been seriously challenged by the defendants. It is denied that Smt. Gouri "Devi had attended the ceremony and in evidence a case has been sought to be made out that it was not physically possible for Smt. Gouri Devi to attend such ceremony as on that date she was lying in a Calcutta Nursing Home where she had been admitted prior to that date for undergoing uterus operation. I would now have to consider the respective cases of the parties in this respect in details. It is not disputed that there is no documentary evidence executed by Smt. Gouri Devi signifying her consent to the alleged adoption. Even regarding her verbal consent the plaintiff could not produce any direct evidence. The plaintiff being a young girl of 11 years at the time of alleged adoption could not enlighten the court about Smt. Gouri Devi's consent.
53. Even Smt. Supriya Devi in her evidence did not specifically state that in her presence Smt. Gouri Devi immediately prior to the alleged date of adoption gave the consent to her husband to take Soma in adoption Smt. Supriya Devi in her evidence (Question Nos. 78 and 244), vaguely stated that Gouri Devi had also expressed the desire to take a girl like Soma in adoption. But that was sometime in 1962 or 1963. At that time there was no concrete proposal from Uttam Kumar to take Soma in adoption. According to Smt. Supriya Devi Uttam Kumar Chatterjee sometime in 1986 while holidaying with Supriya and Soma at Ranikhet, expressed firm desire to take Soma in adoption. So even if Gouri Devi vaguely suggested that Smt. Gouri Devi had such a desire to take a girl like Soma in adoption sometime in 1962 or 1963 that would not tantamount to her giving consent to her husband taking in adoption on 21-2-1967.
54. In the deed Ext. A there is, however, the recital that Uttam Kumar Chatterjee had taken Smt. Gouri Devi's consent. But that is the statement of Uttam Kumar Chatterjee and not of Smt. Gouri Devi. The deed Ext. A was drafted by Shri Prithwish Bagchi who is at present Government Pleader of Alipore Court. He has been examined as a witness by the defendant as a witness. His evidence is that he wrote the deed Ext. A under the instruction of Smt. Supriya Devi and Uttam Kumar Chatterjee. In his evidence he has clearly indicated that he had no personal knowledge as to whether Smt. Gouri Devi gave her consent to the adoption. So Shri Bagchi prepared the deed and wrote about the consent of Smt. Gouri Devi on the representations made by Uttam Kumar Chatterjee. He was a family friend of Uttam Kumar Chatterjee and Gouri Devi, since 1960 or 1961. In the preparation of the deed and in the execution thereof Smt. Gouri Devi was no where in the picture. At the time of the execution of the deed on 21-2-1967 he was present and attested it, as an attesting witness. If Gouri Devi had the consent that it was very probable for Shri Bagchi to obtain the signature for Smt. Gouri Devi as a confirming party. The fact that Smt. Gouri Devi did not sign the deed as a confirming party is a circumstance casting a doubt as to whether Smt. Gouri Devi really gave the consent prior to the taking Soma by Uttam Kumar Chatterjee as the adopted daughter.
55. The implied consent of Smt. Gouri Devi can, however, be presumed if Smt. Gouri Devi really participated in the alleged adoption on 21-2-1967.
56. I would therefore enter into details of the said evidence adduced.
57. The plaintiff Soma was a young girl of 11 years when the alleged ceremony of adoption had taken place. In answer to question No. 96 she admits that the vaguely remembered the ceremony. Even though she states that she had seen Smt. Gouri Devi, Tarun Kumar Chatterjee and Barun Kumar Chatterjee attending the ceremony, yet in answer to question Nos. 121 and 122 she says that she did not remember when they came. So, I do not wish to place much reliance on her evidence. Moreover her conduct in the witness, box shows that she has no regard for truth. On the first day of her cross-examination she even denied having known Biswanath Choudhury, her own father. In her exuberance to assert that late Uttam Kumar Chatterjee was her father she even denied having known Biswanath Chowdhury, her father. On the following day she, however, realised that she had made a blunder by even denying her own father. She tried to make amends by making some voluntary statement that on the last day she could not appreciate the question properly and that Biswanath Chowdhury was her natural father/However, I am of the view that when a daughter in her eagerness to substantiate her case as the adopted daughter of Uttam Kumar Chatterjee even tries to deny her own father such a witness cannot be taken to be at all a truthful witness.
58. The other witnesses to prove about Smt. Gouri Devi's presence at the alleged ceremony of adoption are Smt Supriya Devi, Mr. Upadhyaya, the priest and Mr. Debesh Ghosh a film Producer and Mr. Ashim Sarkar, another film producer. So far as Smt. Supriya Devi is concerned there is no doubt that she being the natural mother of Soma is highly interested in the case. She has executed the deed of adoption Ext. A no doubt along with Uttam Kumar Chatterjee. But the essential ceremony of adoption as laid down in Section 11 of the Hindu Adoption and Maintenance Act has to be proved in order that it shall be a valid adoption under the said Act. Section 11 lays down that the ceremony or Dattaka Boman is not an essential ceremony but that of giving and taking. Moreover, it has also to be proved that Smt. Gouri Devi, the wife of Uttam Kumar Chatterjee had given her consent. So the registration of the deed Ext. A is not sufficient to prove adoption if in fact there was no consent of Gouri Devi or that the essential ceremony of giving and taking had not been performed. However, in her evidence Smt. Supriya Devi has stated that Smt. Gouri Devi attended the ceremony and was present then the religious ceremony was held and Soma was placed on the lap of Uttam Kumar by her. But she being the interested witness the said evidence needs proper corroboration by independent witnesses.
59. Now it is to be seen whether the other witnesses examined are really such independent witnesses on whom reliance can be placed. The Defendant challenge all these witnesses to be procured witnesses.
60. So far as the priest Mr. Upadhyay is concerned the defendants have alleged that he was not the priest at 3, Moira Street, Mr. Tarun Kumar Chatterjee, a younger brother of Uttam Kumar Chatterjee who himself a film actor, claims to maintain good relation with Smt. Supriya Devi. That fact is not challenged by the plaintiff. There is no challenge that he used to visit No. 3, Moira Street where Uttam Kumar spent his night regularly from 1963 till his death in 1980. He denies that Mr. Upadhyaya was ever the priest at 3, Moira Street and mentions the name of one Gopal Thakur as the priest performing Puja there.
61. Even though Smt. Supriya Devi mentions about one priest performing religious ceremony at 3, Moira Street on 21-2-1963. Yet Mr. Upadhyaya introduces three. Moreover, even though he claims to be the priest performing daily puja at 3, Moira Street he admits not to have been invited at the marriage of Soma. If he was really the priest it was very probable to participate in the religious ceremony of Soma's marriage. So his evidence that he did not get the invitation at Soma's marriage makes his evidence regarding to the ceremony at 3, Moira Street on 21-2-1963 very suspect. Moreover, his evidence as to in what manner he was engaged at 3, Moira Street as priest also indicates that a priest is not engaged in the way he suggests. So, I do not place any reliance on the evidence of Mr. Upadhyaya.
62. Mr. Debesh Ghosh, the Film Producer is at present residing at Bombay.
63. Even though Debesh Ghosh claims to be a close associate of Uttam Kumar Chatterjee in 1967, Mr. Tarun Kumar Chatterjee in his evidence stated that he was not so close to Uttam Kumar as he suggested. His evidence discloses that even though he lived in Bombay he was taking unusual interest in the case and came to depose on the request of Supriya without being summoned. In examination-in-chief he claims to have been intimated by Uttam Kumar Chatterjee 2 or 3 days prior to adoption but in cross-examination he makes a different statement by saying that Uttam Kumar Chatterjee had discussion with him about the adoption on 2 or 3 months prior to the adoption. This cannot be true. Even the deed Ext. B was executed sometime on 6th February 1967 and there could be no occasion for Uttam Kumar Chatterjee to inform him about the adoption 2 or 3 months prior to the adoption. Moreover, this witness claims to see only Uttam Kumar Chatterjee, Supriya Devi, Gouri Devi, a priest and Mr. Lalmohan Chatterjee who is admittedly a boyhood friend of Uttam Kumar Chatterjee. No other witnesses mentioned about Dr. Lal Mohan Chatterjee's presence at the ceremony. He did not appear to see Tarun Kumar Chatterjee or Barun Kumar Chatterjee which other witnesses claim to have seen. His conduct appears to be very strange. In a letter to Dr. Lal Mohan Chatterjee Ext. 2 dated 26-12-86, he made a very uncharitable remarks about Supriya Devi and her long association with Uttam Kumar Chatterjee. It is, however, strange that two years after he comes to witness box as an un summoned witness to support the case of Smt. Supriya Devi's daughter. So, I do not consider him to be an independent and reliable witness.
64. The other witness is Shri Ashim Kumar Sarkar who also claims that he was verbally invited in the Studio by Uttam Kumar Chatterjee to attend the ceremony. But shooting of the film which he produced in which Uttam Kumar Chatterjee acted as the hero was admittedly started in 1968 and was released in 1971. That is admitted by Ashim in evidence. It is an admitted fact that he wanted to get tenancy in Rash Behari Avenue in the Uttam Kumar's name transferred in his name after Uttam Kumar Chatterjee's death but not having received any help from Goutam could be successful in getting it transferred in his name with the help of Soma. It is suggested to him that because of his infatuation with Smt. Supriya Devi, Uttam Kumar Chatterjee had once plunged one hairpin on his head. He, however, denies that suggestion. When his association with Uttam Kumar Chatterjee began with the production of film with Uttam Kumar Chatterjee as Hero and when that film first started shooting in 1968 it is difficult to accept his testimony that he was to close to Uttam Kumar in the beginning of 1967 that in the Studio he would be invited to attend the ceremony of adoption in 1967. When he was not producing any film with Uttam Kumar Chatterjee as hero in 1967 it is difficult to accept his evidence that Uttam Kumar Chatterjee who was busy actor in 1967 would meet him in the Studio in February 1967 to invite him.
65. He has got a favour from Soma Chatterjee because he got the tenancy of Uttam Kumar transferred in his name after his death by taking Soma's help. So there was every reason for him to depose on behalf of Soma.
66. This is the sum total of evidence adduced by the plaintiff to prove the ceremony of adoption and the participation of Smt. Gouri Devi. Even as regards the evidence of essential ceremony of giving and taking there is contradiction in evidence. Soma at first states that Uttam Kumar himself takes her in her lap. Smt. Supriya Devi speaks a Chandnatala being prepared for the ceremony which Mr. Upadhyay contradicts by stating that there was no Chandnatala. Smt. Supriya Devi claims to have placed Soma on Uttam Kumar's lap. Debesh states the same thing. But the priest makes contradictory evidence. At first he says that Soma sat on Uttam Kumar's lap. But then he says that she sat in between Uttam Kumar Chatterjee and Gouri Devi. Ashim Sarkar however says that Supriya's sister placed Soma on the lap of Uttam Kumar. If that were so there was no proper giving and taking by Supriya to Uttam Kumar.
67. It is true that the incident having taken place about twenty years ago the witnesses may not remember things correctly. But nobody says that he could not remember things correctly because it happened long ago. But each of them vividly remembers things but makes contradictory statements. The evidence thus does not appear to be reliable. Therefore, there is no independent evidence to support the story of essential ceremony of adoption on 21-2-67 as well as the participation of Smt. Gouri Devi. Moreover, Uttam Kumar Chatterjee and Smt. Supriya Devi being in that business they had large number of friends in the film world. Smt. Supriya Devi admits that in every ceremony in her house photographs are taken. As a matter of fact, several photographs have been exhibited in respect of other such minor ceremony like birthday etc. But there is no single photograph of the ceremony of adoption. Moreover the adoption ceremony of Uttam Kumar Chatterjee's alleged daughter was their family ceremony. It would be reasonably expected that Uttam Kumar Chatterjee would invite people by invitation cards. Moreover, there could no hush hush in the matter. Smt. Chapala Devi has stated in her evidence on commission that she never knew of the adoption and that she never saw Soma. It is not probable that Uttam Kumar Chatterjee, would not inform his own mother about the ceremony of adoption. There is no suggestion to Smt. Chapala Devi that she was in full knowledge of adoption or that she was intimated about it by his son prior to that. Admittedly she was not invited nor did she attend it. Tarun Kumar Chatterjee has also denied that he had any knowledge about the adoption and only when Smt. Gouri Devi created a row about it in January 1976 on receiving the invitation letter of Soma's marriage he had enquired about it from his eledest brother Uttam Kumar Chatterjee. He has categorically denied that he had participated in the ceremony of adoption on 21-2-67. Dr. Lal Mohan Mukherjee whom Debesh claims to have seen at 3, Moira Street on 21-2-1967 also denies to have attended it.
68. The defendants have, however, through Tarun Kumar Chatterjee, Gautam Chatterjee, Dr. Lal Mohan Mukherjee and Mr. Sankar Ganguly, a brother of Smt. Gouri Devi have sought to prove that Smt. Gouri Debi was submitted in Calcutta Nursing Home on 15-2-67 and had been operated upon by Dr. Nandi and had been discharged only on 23-2-1967. It is also their clear evidence that Uttam Kumar also attended his wife Smt. Gouri Devi in the Nursing Home in the morning and in the evening every day and consequently it was not also possible for Uttam Kumar Chatterjee even to attend any such ceremony on 21-2-1967 in the morning as alleged by the plaintiff and her witnesses.
69. Dr. Lal Mohan Mukherjee is admittedly the family physician of Uttam Kumar Chatterjee and Smt. Gouri Devi. He has produced the Exercise Book in which he claims to have recorded the details of the treatment that Gouri Devi had taken for her almirah in 1967 and 1968. From the entry of the said Exercise book, Ext. 4 the defendants seek to prove that the defendants story in this respect is true. This story has been seriously challenged by the plaintiff. It is contended that Smt. Gouri Devi was operated upon only sometime in 1968 and the story of her admission to Nursing Home on 15-2-1967 is a got up story.
70. It is true that the records of the Calcutta Nursing Home has not been called for even though there is no evidence that records of the Nursing Home for the relevant period are not available. It is true that apart from the oral evidence of the defendants' witnesses who appear to be more or less interested and a few documents produced there is no satisfactory independent evidence to support that story. Moreover, the defendants did not cause to produce the best evidence available. That Smt. Gouri Devi was ailing at about that time had not been disputed. The plaintiff only challenges that she was not in Nursing Home on or about 21-2-1967.
71. Even if, I can hold that the defendants did not produce the best evidence in this respect yet that does not automatically prove Smt. Gouri Devi's participation in adoption ceremony. I am firmly convinced that the plaintiff has failed to prove by satisfactory evidence that Smt. Gouri Devi actually attended the alleged ceremony. I am also convinced that the evidence for the essential ceremony of adoption also is not at all satisfactory. On behalf of the defendants it is urged that not only Smt. Gouri Devi did not attend the ceremony but also she had no knowledge of the said adoption prior to January, 1976 and that he came to know of it on receiving the invitation card of Soma's marriage in which Uttam Kumar Chatterjee printed the invitation cards declaring him to be the adopted father of Soma. A copy of that invitation card has been exhibited in this case.
72. There is clear and preponderance of evidence that Smt. Gouri Devi was clearly upset on receiving that invitation card. Smt. Chapala Chatterjee mentions about it. Gautam Chatterjee, Dr. Lal Mohan Chatterjee and Tarun Kumar Chatterjee also mention about it. Smt. Gouri Devi had gone to meet Prithwish Bagchi, the advocate of Alipur Court who prepared the deed of adoption. Shri Prithwish Bagchi has in his evidence admitted that Smt. Gouri Devi came and met him at about that time. In answer to question Nos. 19 and 20 Mr. Prithwish Bagchi has admitted that Smt. Gouri Devi came to him and began to cry before his wife and he had told her that if actually Uttam did not take her consent, then she should ventilate her grievance. He also concedes that it was at the time when Uttam Kumar had printed the invitation cards of Soma's marriage. It is also in evidence that after that Smt. Gouri Devi wrote letters to her husband, Smt. Supriya Devi, other relatives and friends including Mr. Prithwish Bagchi denying that she had given consent to the adoption. The copy of that letter has been exhibited. Some of the acknowledgement cards have been exhibited. Some of the persons who have received the letter, have been examined. It is also in evidence that at about that time Smt. Gouri Devi declared in Calcutta Gazette that she had not given consent to her husband to take Soma in adoption.
73. On behalf of the plaintiff, it is urged that the subsequent conduct of the wife denying giving consent would be immaterial if really she gave the consent. It is true that if Smt. Gouri Devi really gave consent her subsequent assertion that she did not give the consent would be immaterial. But in my view on considering the nature of evidence produced by the plaintiff and the subsequent denial of Smt. Gouri Devi it is clearly established that Smt. Gouri Devi did not give the consent. It is not at all probable that if she really gave the consent voluntarily to Uttam Kumar Chatterjee to take Soma in adoption then only on coming across the invitation card of Soma's marriage she would create such a row and ventilate to her relatives and friends her grievance that she did not give the consent.
74. Even the evidence by the plaintiff for the ceremony of adoption is far from satisfactory. It is well settled that as adoption disturbs and displaces the natural line of inheritance and the plaintiff has to discharge her heavy burden to prove both the factum and validity of adoption. The reference may be made to Kishori v. Chalij Bai, and Raghavamma v. Chenchammal, .
75. On behalf of the defendant it is urged that in order to prove a valid adoption there would be not only giving and taking but such giving and taking would be with intention to transplant the child from the family of the natural parents to that of the adopted parents and that in this case Soma continues to live at 3, Moira Street where she was previously residing and never went to reside with the family of the adopted parents at Bhowanipore.
76. It is true that even after the alleged adoption the plaintiff continued to live at 3, Moira Street and never went to live at Bhawanipore house of Uttam Kumar Chatterjee. It is urged that Uttam Kumar Chatterjee had been residing at 3, Moira Street with Supriya and Soma since 1963 and continued to do so till his death and that was why she did not have the occasion to live at Bhawanipur house and that she however went there and visited Smt. Gouri Devi and other relations.
77. But the evidence of this respect clearly suggests that Soma never want to stay at Bhawanipore house. Even though Uttam Kumar Chatterjee continued to stay at 3, Moira Street, yet Smt. Gouri Devi would become her mother if there was really the adoption. If there was consent of Smt. Gouri Devi it was natural and probable for Soma to visit her adoptive mother as a daughter would do. Shri Tarun Chatterjee who used to love Soma as her daughter and he maintained good relations with Supriya Devi all along has clearly stated that Soma never came to live at Bhawanipore house. Smt. Chapala Chatterjee never saw Soma. If Soma became adopted daughter of late Uttam Kumar Chatterjee, she would be introduced to Chapala because Chapala became her grand mother. But Chapala Devi admittedly never saw Soma. That evidence of Chapala in examination-in-chief was not challenged in cross-examination. Other relatives who have been examined also never saw Soma at Bhawanipore house. On behalf of the defendants it is also urged that the adoption was not a genuine one but only a paper transaction by way of a registered deed Ext. A only would be borne out by the subsequent conduct of Soma herself.
78. It is submitted that when Soma's marriage under the Hindu Marriage Act has been registered in January 1976 in the application for registration of marriage she describes herself as the daughter of Biswanath Choudhury. The application of registration of marriage Ext. 1/1 and 2/1 clearly proves that fact. In the application Soma actually described herself as the daughter of Biswanath Choudhury. It is also significant to note when she married for second time in 1982 i.e. after the filing of this suit, she described herself as the daughter of Uttam Kumar Chatterjee.
But as in the meantime the present suit has been filed, there was sufficient motive for Soma to create such evidence. But admittedly in 1976 she described herself as the daughter of Biswanath Choudhury. Even in the application for Passport Ext. 24, she described herself as the daughter of Biswanath Choudhury. Mr. Chakraborty on behalf of the plaintiff has drawn my attention to Section 12 and 15 of the Hindu Adoption and Maintenance Act and has urged that if there was valid adoption, Soma by her subsequent conduct could not avoid or nullify it. Section 12 nodoubt is the deeming provision which declares that an adopted child shall be declared to be the child of the adoptive father or mother for all purposes with effect from the date of adoption. Section 15 also declares that not only adoptive father or mother but also the adoptive child cannot renounce his or her status as such and return to the family of his or her birth.
79. But this pre-supposes a valid adoption. The learned Advocate for the defendants points out that he is showing these circumstances to prove that there was in fact no valid adoption because if there was valid adoption Soma would not have continued to describe herself as the daughter of her natural father Biswanath Choudhury.
80. I am of the view that if there was valid adoption, Soma's subsequent inconsistent conduct would not cancel such adoption. But when I have already indicated that the plaintiff failed to produce sufficient independent evidence to prove that the adoption was a valid one, these circumstances namely that she continued to remain a stranger to the family of her adoptive parents and she continued to describe herself as the daughter of Biswanath Choudhury establish that there was in fact no valid adoption of Soma by Uttam Kumar Chatterjee.
81. Therefore, the Issue No. 1 is answered in the negative.
Issue Nos. 4 and 5 : In view of my findings in issue No. 1, I am of the view that, the plaintiff is not the adopted daughter of Uttam Kumar Chatterjee and as such she cannot claim any share to the estate of Late Uttam Kumar Chatterjee as his adopted daughter. Her suit is, therefore, dismissed with costs.