Shri Kishori Lal vs Mst. Chaltibai

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeal No. 177 of 1955

Decision Date: 1 December 1958

Coram: J.L. Kapur, Syed Jaffer Imam, S.K. Das

In the matter of Shri Kishori Lal versus Mst. Chaltibai, decided on 1 December 1958, the Supreme Court of India rendered its judgment under the authorship of Justice J.L. Kapur, with Justices Syed Jaffer Imam and S.K. Das forming the bench. The case was reported in 1959 AIR 504 and also appears in the 1959 Supplement to the Supreme Court Reports (1) 698, with subsequent citations in F 1983 SC 114, R 1987 SC 962, and other reporters. The dispute concerned the application of Hindu law regarding adoption, the proof required to establish such adoption, and the doctrine of estoppel where both parties possessed knowledge of the true facts. The respondent, Mst. Chaltibai, had instituted a suit seeking a declaration and possession of certain properties that had been left by her deceased husband, identified only as L. The petitioner, Shri Kishori Lal, contested the suit on the ground that L had adopted him as a son six months prior to L’s death. Apart from oral testimony asserting the adoption, the petitioner claimed that he performed the funeral rites for L in the capacity of an adopted son, that on the thirteenth day after L’s death the respondent had taken him in her lap, that he had taken possession of L’s estate, that the respondent later performed his marriage, and that the respondent herself recognized him as L’s adopted son. The petitioner further argued that the respondent was estopped from disputing the adoption because of her earlier representations in legal proceedings and documents, and because the petitioner had, by reason of the alleged adoption, relinquished any claim to share in the properties of his natural family.

The respondent denied that any adoption had taken place and rejected any acceptance of the petitioner as L’s adopted son. The trial court dismissed the respondent’s suit, holding that the adoption was proved. On appeal, the High Court reversed that decision, finding that the adoption had not been established and consequently granting a decree in favour of the respondent. Both the trial court and the High Court concluded that the respondent was not estopped from challenging the alleged adoption. The Supreme Court affirmed the High Court’s view, holding that the adoption had not been established. It observed that because adoption alters the line of succession, the evidence supporting it must be free from any suspicion of fraud, and must be so clear and consistent as to leave no room for doubt. The Court further held that the doctrine of estoppel does not confer status; it merely prevents certain parties from denying an adoption when they have previously acted in a manner that acknowledges it. However, where both parties are fully aware of the true facts, the doctrine of estoppel does not apply. The Court emphasized that admissions made by a party are not conclusive, and unless they amount to estoppel, a party remains free to demonstrate that such admissions were mistaken or untrue. Moreover, the Court stated that presumptions derived from a party’s conduct cannot sustain a claim of adoption, even if all concerned had acquiesced, because the underlying evidence must still demonstrate that the adoption actually occurred.

The Court noted that the evidence presented demonstrated that the alleged adoption had not occurred, relying on the precedent set in Mohori Bibi v. Dhurmdas Ghosh, (1902) 30 I.A. 114. The matter before the Court was Civil Appeal No. 177 of 1955, arising from the judgment and decree dated 28 September 1953 of the former Nagpur High Court in First Appeal No. 115 of 1951. That judgment itself was based on the decree dated 25 July 1951 of the Court of Additional District Judge, Bhandara, in Civil Suit No. 14‑A of 1957. Counsel for the appellant consisted of C. B. Aggarwala and Radheylat Aggarwal, while the respondent was represented by S. P. Sinha and S. N. Mukherjee. The decree under appeal had reversed the decision of the Additional District Judge who had dismissed the plaintiff’s suit. The judgment was delivered on 1 December 1958 by Justice Kapur. The appeal challenged the High Court’s reversal and sought a declaration that the appellant, Kishori Lal, was not the adopted son of the plaintiff’s husband and therefore had no right to claim the properties described in schedules B, C and D.

The factual matrix laid down for consideration was as follows: Badrinarayan and Lakshminarayan were brothers, the elder Badrinarayan conducting business at Raipur while the younger Lakshminarayan operated his trade in the ancestral village of Tirora, where Badrinarayan also engaged in some commercial activities. Lakshminarayan’s first wife died in 1919 leaving a son and a daughter. In 1922 he married the respondent, Mst. Chaltibai, who later became the appellant’s opponent in the present suit. After this marriage Lakshminarayan’s son died, leaving only a daughter, Mst. Jamnabai, who was married to a man named Chotteylal. Lakshminarayan died on 6 January 1936 of a heart disease, leaving an estate valued at approximately Rs. 30,000 and described in schedules B, C and D. The respondent, now the plaintiff, alleged that Lakshminarayan’s death was sudden and not preceded by any heart ailment, whereas the appellant contended that the deceased had suffered from heart trouble since 1934. The appellant further asserted that, out of desperation to secure a male heir, Lakshminarayan adopted him in the month of Jaisth (May–June) 1935. At the time of adoption Kishori Lal was thirteen years old and was the youngest of five sons of Badrinarayan; his brothers were Mohanlal, Gowardhan, Nandlal and Narayan. According to the appellant’s version, after the adoption he lived with Lakshminarayan as his son, performed the funeral rites as an adopted son upon Lakshminarayan’s death, was seated upon the family gaddi and had a turban tied on his head in accordance with caste customs. These acts, the appellant argued, demonstrated his recognition as the adopted son and entitled him to the succession of the estate described in the schedules.

In the facts narrated, the adopted son was taken on the thirteenth day after the death of Lakshminarayan by the respondent, Chaltibai, into her lap from Badrinarayan, with the consent of Lakshminarayan’s relations and in their presence. He subsequently entered into possession of Lakshminarayan’s estate and was acknowledged as his adopted son, an acknowledgment that continued even from the respondent herself up to the year 1946. The respondent also performed the appellant’s marriage in 1942. After attaining majority, the appellant managed the estate on his own, and when a family partition took place on 30 October 1943, he received no share because he had already been given out in adoption to another family. In her plaint, the respondent denied both the adoption and any treatment of the appellant as an adopted son. She described herself as an illiterate purdanashin woman, unaware of business management. After her husband’s death she placed full confidence in Badrinarayan, who assured her that he would look after her affairs, business and property; consequently Badrinarayan assumed control of the estate, the account books and the court work. At his urging she signed several documents without comprehending their contents, and at times she even signed blank papers. The appellant and his father Badrinarayan later attempted to exclude her from the business and estate, which generated a dispute that led to criminal proceedings under sections 107 and 145 of the Code of Criminal Procedure. A receiver was appointed and, by an order dated 19 May 1947, the magistrate directed the parties to have their rights decided by a civil court. The appellant’s challenge to that order in revision was unsuccessful. In the criminal case the appellant asserted that he had been adopted by Lakshminarayan six months before Lakshminarayan’s death, a claim the respondent denied in her plaint. The trial court framed four issues, of which two were material for the present appeal: (1) whether Lakshminarayan validly adopted the second defendant in the bright fortnight of Jyestha (June) 1935 and whether such adoption was legally valid; and (2) whether the plaintiff had consistently recognized the adoption as valid and had treated the second defendant as Lakshminarayan’s son, and, if so, what the consequence would be. The trial court dismissed the suit, finding that the adoption was proved but that the appellant could not rely on estoppel. The High Court, on appeal, reversed the finding on the fact of adoption but upheld the finding on estoppel, holding that the respondent was not estopped by any misrepresentation on her part, that no conduct of hers had deprived her of the right to bring the suit, and that both parties were aware that no adoption had actually taken place. Accordingly, the High Court allowed the appeal.

In this appeal, the appellant Kishorilal sought leave to bring the matter before this Court on a certificate issued by the High Court. The judgment of the High Court was challenged on several points. First, it was contended that the evidence adduced in support of the adoption established that the appellant had been adopted by Lakshminarayan six months before Lakshminarayan’s death. Second, the appellant relied upon the doctrine of estoppel, arguing that the respondent Chaltibai had, in earlier proceedings and by executing various documents as well as through her conduct, represented that the appellant was the adopted son of Lakshminarayan. The respondent had placed the appellant in possession of the entire estate, relinquished her own claim to inheritance, and, as a result of these representations, the appellant had been transferred from his biological family to another family and had been denied any share in the property of his natural family. Third, it was submitted that because the respondent had previously admitted that the appellant was the adopted son and heir of Lakshminarayan, the burden of proving the contrary rested on her. Fourth, it was urged that the long‑standing course of conduct by the respondent, who had consistently treated the appellant as the adopted son, should be taken into account and that the evidence produced should therefore be deemed sufficient to prove the adoption. Since no formal deed of adoption existed, the appellant attempted to prove the adoption through the testimony of six witnesses. These included his biological brother Mohanlal, his natural father Badrinarayan, two relatives named Narsingdas and Shankarlal, a neighbour identified as Chattarpatti who was a physician, and the appellant himself. A seventh witness, Sobharam, was called to establish an admission by Lakshminarayan that he had adopted the appellant. According to the narrative presented by the appellant, Lakshminarayan, having no biological son, requested his brother Badrinarayan to give his youngest son for adoption; Badrinarayan consented, and the adoption was carried out at Lakshminarayan’s residence in Tirora during the month of Jyaistha 1935, roughly six months prior to Lakshminarayan’s death. The formalities, as described in the evidence, involved placing the appellant on the lap of the adoptive mother not of the mother but of Lakshminarayan, who applied a tilak to the appellant’s forehead and tied a turban on his head. Following this, a distribution of pansupari—ritual food—was made to the assembled persons, which included Narsingdas and Shankarlal, who were not residents of Tirora, as well as Raman and Jivan Singh, who served Lakshminarayan, and Chattarpatti the neighbour. The evidence also mentioned Bhaiyalal, who was not examined, and the presence of Mohanlal, the appellant’s real brother. The appellant indicated that several other persons were present, although they were not witnesses, and that Badrinarayan and Mohanlal did not comment on their presence.

In the evidence presented, Bhaiyalal was noted as not having been examined, while Mohanlal, who was the appellant’s actual brother, was present at the gathering. The appellant indicated that several other individuals were also present, but those persons were not called as witnesses, and neither Badrinarayan nor Mohanlal referred to their attendance. No religious ceremony or priest was employed, although the witness Narsingdas testified that a priest had been present at the adoption ceremony and that a Ganesh puja had been performed. The record further shows that no invitations were dispatched to any brotherhood, friends, or relatives, and apart from the individuals already listed, no other persons attended, meaning that the adoption received no public notice. None of the respondent’s relatives were invited or present, even though the respondent, Chaltibai, had married brothers and sisters. In fact, Chaltibai herself was not seen at the adoption ceremony; it is stated that she remained in an inner room. After the adoption formalities, Lakshminarayan personally placed the adopted son on the lap of the respondent, Chaltibai. The event was not followed by a feast, no photographs were taken, and no gifts were given to the adopted son. Lakshminarayan did not consult any priest, a step normally taken to choose an auspicious day for adoption. Although the defendants were permitted to amend their written statement, they supplied only a vague reference to the adoption occurring in the month of Jyaistha 1935, without specifying the exact date. Both parties belong to the Aggarwal commercial community, which traditionally keeps comprehensive and detailed accounts. Badrinarayan, identified as defendant No 1, entered an account for 20 January 1936 relating to expenses incurred on the thirteenth‑day ceremony after Lakshminarayan’s death, yet he failed to produce any ledger showing the dates when he and his son, the appellant, traveled from Raipur to Tirora for the adoption or when they returned. No contemporary document has been produced to establish the timing of the adoption or the expenditures made by Badrinarayan, nor have Lakshminarayan’s own account books—claimed by the appellant to have been maintained—been produced to detail any costs of the modest ceremony on the adoption date. The account that Badrinarayan furnished records spending on betel leaves, milk, betelnuts, and payments made at Lakshminarayan’s house, including amounts for a turban used during the reading of the Garud Puran and a sum paid to “Kesu” (identified as a pet name for Kishorilal) for touching the elders’ feet. The appellant has not explained the relevance of these expenditures. As an adoption alters the line of succession, deprives wives and daughters of their rights, and transfers property to distant or unrelated parties, it is essential that the supporting evidence be free of suspicion and convincingly reliable.

The Court stated that evidence used to prove an adoption must be completely free of any suspicion of fraud and must be so consistent and probable that no occasion remains for doubting its truth. Consequently, the failure to produce any accounts, especially in circumstances that have been established in the present case, created a highly suspicious situation. The Court emphasized that the importance of accounts had been highlighted by the Privy Council in Sootrugun v. Sabitra (1); in Diwakar Rao v. Chandanlal Rao (2); in Kishorilal v. Chunilal (3); in Lal Kunwar v. Charanji Lal (4); and in Padamlal v. Fakira Debya (5). The Court further observed that the oral testimony of the witnesses who claimed that the adoption had taken place was both insufficient and contradictory. Although the witnesses agreed that the appellant had been taken in adoption by Lakshminarayan, they were not in accord regarding the details of the adoption, the ceremonies performed, or the customary feast that usually follows such an event. The only point on which all witnesses concurred was that no presents were given. Regarding the incident in which the respondent supposedly took the appellant in her lap after Lakshminarayan’s death, the witnesses again disagreed about the date, the manner in which it occurred, and the reason for it. The Court noted that the claim of an adoption during Lakshminarayan’s lifetime was contradicted by a document dated 24 January 1938, a sale deed executed by the respondent Chaltibai in favour of the firm Ganeshram Fatteh Chand, the family firm of witness Narsingdas. That deed recorded that the adoption of the appellant had taken place after Lakshminarayan’s death and was carried out by the respondent Chaltibai under the authority of her deceased husband and with the consent of the whole family, and it was witnessed by the natural father, Badrinarayan. No satisfactory explanation for this entirely different adoption, mentioned in a deed executed only two years after Lakshminarayan’s death, was offered by the appellant. The appellant merely argued that whether he had been adopted by Lakshminarayan during his lifetime or after his death by the respondent Chaltibai, he would still be considered the adopted son of Lakshminarayan, and therefore the discrepant recital in the sale deed was of little consequence. The Court held that this argument ignored the case presented by the appellant in his written statement and disregarded the complete absence of any evidence showing the husband’s authority or the assent of his kinsmen, matters that were neither pleaded nor proved. Another circumstance that cast serious doubt on the appellant’s claim of adoption was that, after the alleged adoption, the appellant returned to Raipur where his natural father resided. Although Badrinarayan had asserted that the appellant lived with his adoptive father after the adoption, this assertion was contradicted by evidence produced by the appellant himself, which indicated otherwise.

In the factual record the appellant returned to school at Raipur after the death of Lakshminarayan and came back to Tirora on the very day the deceased died. The High Court observed that he left Tirora following the funeral rites and did not return until three or four months later. The school leaving certificate demonstrates that he was enrolled as a student at the Tirora school from 22 June 1936 to 30 June 1937, and that during this period he was recorded as the son of Badrinarayan. Considering these details, the High Court correctly concluded that the alleged adoption by Lakshminarayan had not been proved.

The appellant then contended that, notwithstanding the unsatisfactory nature of the evidence concerning the adoption, the respondent should be estopped from asserting the true facts because she had previously represented, in earlier documents and legal proceedings, that the appellant was the adopted son of the deceased Lakshminarayan, thereby inducing him to shift his allegiance from the family of Badrinarayan to that of Lakshminarayan. The Court noted that both parties were fully aware of the actual circumstances, and therefore the doctrine of estoppel could not be applied. It was held that the respondent’s words or conduct did not wilfully cause the appellant to believe that an adoption existed, nor did they induce him to act on such a belief. The Court referred to the authorities Pickard v. Sear (1) and Square v. Square (2) and observed that the Privy Council in Mohori Bibi v. Dhurmdas Ghogh (3) ruled that estoppel cannot arise where the truth of the matter is known to both parties. Consequently, when both parties are equally conversant with the facts, estoppel is inapplicable. The documents on which the appellant based his claim of estoppel comprised four items, supplemented by alleged acts of the respondent discussed later. The first document was an application dated 21 March 1936 for a succession certificate filed by the respondent in the capacity of “guardian mother” of the appellant Kishorilal, a step required to obtain insurance proceeds on the policy taken out by the deceased Lakshminarayan. The High Court determined that there was no evidence that the respondent, Chaltibai, had signed the document after it had been explained to her; moreover, the document was in English, a language with which she was not familiar. Two additional drafts for the succession certificate application were also noted, as cited in (1) (1837) 6 AD. & E. 469; (1837) 112 E.R. 179. (2) [1935] P. 120. (3) (1902) 30 I.A. 114.

The report cited as (1902) 30 I.A. 114 was placed on the record. In the two drafts of the application for the succession certificate, Badrinarayan was identified as “guardian uncle” of the appellant Kishorilal. Although Badrinarayan was initially reluctant to accept that description, he later acknowledged that the two drafts existed. He further stated that he had instructed Jivan Singh, a servant of the deceased Lakshminarayan, not to file the application until after he had consulted a pleader named Mr. P. S. Deo. After obtaining the pleader’s advice, the application was finally filed, but with Chaltibai named as the guardian instead of Badrinarayan. Paragraph 3 of the draft listed the relatives of the deceased Lakshminarayan. The list comprised the widow Chaltibai, the daughter Jamnabai, the brother Badrinarayan and the four sons of Badrinarayan. In that column Kishorilal was not shown as a relative of the deceased. A later paragraph, however, recorded that the petitioner – that is, the appellant Kishorilal – claimed the certificate on the ground that he was the adopted son of Lakshminarayan. The High Court observed that the document had not been explained to the respondent Chaltibai and therefore could not be said to contain any admission, let alone give rise to estoppel. The Court concluded that the draft did not contain any statement that would necessarily demonstrate that Kishorilal had been adopted by Lakshminarayan during the latter’s lifetime.

The next document relied upon was an entry in a family “bahi” kept by a Mathura Panda, dated 21 July 1944. According to the appellant’s version, the respondent Chaltibai had visited Mathura on her way back from Badrinarayan, and the Panda, after making enquiries of her, entered a note in the bahi indicating that Kishorilal was the adopted son of Lakshminarayan. That entry bore Chaltibai’s signature. This entry was later contradicted by another entry in the same Panda’s bahi, which was recorded as being made at the instance of Mohanlal, the eldest brother of the appellant, on 2 March 1947 – roughly two and a half years after the earlier entry. The later entry identified Kishorilal as the son of Badrinarayan and made no reference to any adoption by Lakshminarayan. The Court held that whether the earlier bahi entry had been made at the behest of the respondent Chaltibai was irrelevant, because the entry did not advance the appellant’s case and did not demonstrate that Kishorilal had been adopted by Lakshminarayan. The next document was an “adhikar patra” dated 4 May 1946, which referred a dispute between the appellant and the respondent to arbitration by seven persons. The document was signed by both parties and contained the wording: “Relations between us mother and son have become strained in connection with some matters; it is very necessary to remove the same.” Another portion of the same document used the phrase “between us the mother and the son.” The High Court did not accept this document as containing an admission, because at the time of its execution the respondent Chaltibai continued to deny that Kishorilal had been adopted, a denial that was proved by the testimony of two …

The Court observed that the arbitration panel, referred to as the panches, could not be said to have produced a document that accurately reflected the true state of affairs, and even assuming it did, the document could not be treated as an admission by the respondent that the appellant had been adopted by Lakshminarayan. The Court then turned to the deed of sale dated 24 January 1938, in which the respondent recorded that the appellant, Kishorilal, had been adopted by her husband in accordance with his wishes and with the consent of the entire family. This statement directly contradicted the appellant’s written statement, wherein he claimed that he had been adopted by Lakshminarayan during Lakshminarayan’s lifetime. In that written statement, the appellant had only pleaded that being placed in the lap of the respondent, Chaltibai, served as confirmation of his adoption by Lakshminarayan. The Court held that the documents previously mentioned did not support the appellant’s contention that he had been misled by any misrepresentation made by the respondent, Chaltibai, regarding his alleged adoption by Lakshminarayan. Accordingly, the appellant could not be permitted to advance a case that differed from the one he had set out in his written statement, nor could he be allowed to prove his title as an adopted son on the basis of a different factual premise. The Court referred to the authorities Tayammaul v. Sashachalla Naiker (1) and Gopeelal v. Mussamat Chandraolee Buhajee (2) to illustrate that the proper rule of estoppel in adoption cases does not create a status; it merely prevents certain persons from denying an adoption when they have previously acknowledged it. However, where both parties are equally aware of the actual facts, the doctrine of estoppel has no applicability. The appellant’s counsel had additionally relied on two facts to support the estoppel plea: first, that the appellant had been permitted to perform the obsequies of Lakshminarayan, and second, that the respondent, Chaltibai, had performed the appellant’s marriage as his adoptive mother. The Court noted that if the adoption itself were disproved, these two facts would not enhance the effectiveness of the estoppel plea, which otherwise remained inapplicable, citing Dhanraj v. Sonabai (1). The appellant also relied on Rani Dharam Kunwar v. Balwant Singh (2), a case in which the adoptive mother, the Rani, had previously asserted her authority to adopt, and the Privy Council had held that the matter could be decided on its own facts without resorting to estoppel, although it did not dissent from lower courts on the doctrine’s applicability. The Court distinguished that case because the parties were not equally conversant with the true facts and because the court there had found that the claimant was, in fact, an adopted son. In the present case, the Court concluded that there was no substance to the appellant’s estoppel argument. Whatever acts, admissions, or conduct of the respondent, Chaltibai, were undertaken with respect to the appellant, Kishorilal, could not amount to estoppel, as both parties were fully aware of the actual circumstances.

The Court observed that the acts of the respondent could not give rise to estoppel because both parties were equally aware of the true facts. It noted that none of the four documents signed by the respondent contained any admission that Kishorilal had been adopted by her husband while he was alive. In contrast, the sale deed dated 24 January 1938 recorded an adoption made by the respondent herself, but that adoption was not the one on which the appellant relied in support of his claim. The Court further examined the other documents, namely the application for a succession certificate, the arbitration agreement and the entry in the Panda’s bahi, and found that each of these was consistent with the recital in the sale deed and did not establish the appellant’s contention that he had been adopted by Lakshminarayan himself. The judgment cited the authorities (1) (1925) 52 I.A. 231, 243 and (2) (1912) 39 I.A. 142, 148 in this regard.

The appellant argued that the respondent’s conduct, her various admissions and the way she and other family members treated him as an adopted son created a strong inference that he was indeed the adopted son claimed. Counsel for the appellant emphasized that shortly after the death of Lakshminarayan it was widely asserted that the appellant was his adopted son and that this assertion appeared repeatedly in many transactions and documents. He submitted that the documents, the respondent’s treatment of the appellant as the adopted son of Lakshminarayan and the appellant’s long possession of Lakshminarayan’s estate together demonstrated his adoption. The appellant further contended that such admissions shifted the burden of proof onto the respondent, relying on the principle that a party’s own admission may be presumed true until it is rebutted, as stated in Chandra Kunwar v. Narpat Singh (1). The Court held that the issue of burden lost its effectiveness because the lower courts had never objected to the admissions and because the parties had presented evidence, leaving the matter for adjudication on the material before it. The Court also observed that admissions are not conclusive; unless they amount to estoppel, a party remains free to show that they were mistaken or false, citing Trinidad Asphalt Company v. Coryat (2). It further explained that admissions are merely pieces of evidence and, when the truth is known to both parties, the principle from Chandra Kunwar would not apply. In the present case, the Court found no admission by the respondent that the appellant had been adopted by her husband during his lifetime, and such alleged admissions could not support a different assessment of the evidence on adoption, referring to (1) (1906) 34 1. A. 27 and (2) [1896] A. C. 587.

In order to understand the effect of the alleged admissions, the Court examined the circumstances under which the various documents were executed and the acts were performed. At the time of Lakshminarayan’s death the respondent, Chaltibai, was about twenty‑four or twenty‑five years old and was surrounded by the family of Badrinarayan, whose interest was to impose an adoption upon her. Her own relatives did not appear to take any interest in her affairs, leaving her a widow who was isolated and dependent on her husband’s relatives. The trial Court described her as a pardanashin woman, indicating her seclusion from public life. Although Badrinarayan denied that he managed the estate of the deceased, the appellant’s witness Narsingdas testified that Badrinarayan was in fact doing so, and Badrinarayan himself admitted that he looked after the court cases at the request of the respondent. This background required that any admission made by a widow in such a vulnerable position be given very little weight, as stated in Padamlal v. Fakira Debya (1). In addition to the four documents already mentioned, the appellant Kishorilal relied on further instances of alleged admissions and conduct by the respondent. The first instance involved the appellant performing the funeral rites for Lakshminarayan and the respondent subsequently taking the appellant in her lap. The Court observed that merely performing funeral rites does not necessarily indicate an adoption, since the performance of such rites varies according to family customs and circumstances. Evidence presented by the appellant showed that when a son was absent, a younger brother or nephew commonly performed the obsequial ceremonies. The Privy Council in Tayamal’s case (2) held that funeral rites do not sustain an adoption unless the adoption itself is clearly demonstrated. The appellant argued that the respondent’s act of taking him in her lap, together with the performance of the rites, proved her acceptance of his adoption by the deceased husband. The Court found this argument to be a weak basis for inference, noting that Badrinarayan himself stated that it was not customary for a widow to hold an adopted son in her lap, and that in this case the act was done solely at the respondent’s personal desire. Consequently, this evidence could not establish an adoption by Lakshminarayan, nor could it serve as confirmatory evidence in the absence of sufficient proof of such an adoption. Finally, counsel for the appellant relied on the claim that the appellant had continued to reside with Lakshminarayan after the alleged adoption and, after Lakshminarayan’s death, with the respondent; this point was subsequently addressed in the following discussion.

The Court had previously observed that the appellant had failed to establish that he lived with Lakshminarayan after the alleged adoption. In fact, the record demonstrated that he departed from Tirora shortly after the purported adoption and only came back after Lakshminarayan’s death. Subsequently, he went to Raipur and, after a period of four or five months, returned once again to Tirora. The fact that the appellant may have continued to stay with the respondent after these movements does not, in the present case, amount to proof of adoption. The school register continued to list him as the son of Badrinarayan and this entry persisted until 30 June 1937. Moreover, the mere co‑residence of a young nephew with a widowed and relatively young aunt cannot be regarded as evidence that the aunt’s husband adopted the nephew, especially when there is no satisfactory proof of the act of adoption itself.

The appellant further contended that, following Lakshminarayan’s death, he possessed the deceased’s properties and that his name appeared in all civil and revenue proceedings. Nevertheless, as the Court noted earlier, Badrinarayan had assumed control of Lakshminarayan’s estate and was actively supervising the related court cases. Consequently, any entries of mutation made in the appellant’s name, any suits filed under his name, or any licences obtained by him are of only marginal significance. The record does not show that the respondent was present, represented, or aware of these mutations or suits, and it appears that these actions were undertaken because Badrinarayan was managing the estate and its litigation. Even after the appellant reached majority and began managing the estate, receiving recognition from the community as its owner, this development held little importance for the respondent, who merely required someone to manage the property, irrespective of whether that person was Badrinarayan or the appellant Kishorilal. It is also noteworthy that the mutation order issued by the Tehsildar on 8 April 1936, concerning the three‑quarter share of Mouza Jabartola, was entered in favor of the respondent rather than the appellant. In various jamabandi records, the appellant is sometimes shown under the guardianship of his mother Chaltibai and at other times under the guardianship of his uncle Badrinarayan. The appellant placed great emphasis on the fact that his marriage was solemnized by the respondent, Chaltibai, who claimed to act as his adoptive mother. However, the performance of the marriage itself does not establish adoption, which the evidence otherwise refutes, and the circumstance is entirely neutral. At most, the facts cited by the appellant may be interpreted as acts of acquiescence on the part of the respondent.

The Court noted that the matters mentioned by the appellant would become relevant only if they were applied to the issue that required a determination based on the preponderance of evidence. It further explained that once the facts have been established, a presumption derived from conduct cannot create a legal right when the established facts actually disprove that right; the Court referred to Tayamal’s case (1) at p. 433 for this principle. The Court also observed that presumptions cannot sustain a claim of adoption, even though the authority (1)(1865) 10 M.I.A. 429 has been cited in other contexts. The Court added that, although the adoption might have been acquiesced to by all parties concerned, the evidence in the present case clearly shows that the adoption never took place. The appellant also relied upon the fact that on October 30, 1933, Badrinarayan, his wife and his sons partitioned their family property. The Court held that this act was not performed by the respondent and therefore could not affect the respondent’s rights, provided those rights were otherwise enforceable. After considering all the material, the Court concluded that the judgment of the High Court was sound. Accordingly, the appeal was dismissed with costs, and the order of dismissal was affirmed.