NILIMA MUKHERJEEversusKANTA BHUSAN GHOSH

                         NILIMA MUKHERJEE                                        A
                                 v.
                        KANTA BHUSAN GHOSH

                            AUGUST 17, 2001

   [SYED SHAH MOHAMMED QUADRI AND S.N. PHUKAN, JJ.]                              B

      Rent Control and Eviction

     Eviction suit-Death of tenant-Appellants's claim to tenancay-Based
on adoption-Adoption not proved-Suit decreed-Held, suit rightly decreed. C

      Hindu law

      Hindu Adoption and Maintenance Act, 1956-Section 11 (Vl)-Death
of tenant-Claim to tenancy based on adoption-Witnesses having no personal
knowledge of adoption-No documentary evidence except joint bank account          D
with deceased tenant-Held, adoption not valid in the absence of proof-
Hence, claim to tenancy rightly rejected by courts below.

      The Respondent/plaintiff filed an eviction suit against the appellant on
the ground that as 'R' who was inducted as tenant died intestate, the tenancy
became extinct and the appellant who was living with him has no right to         E
continue as a tenant. Plea of the appellant was that she would continue to be
tenant as the adopted daughter of 'R'. In order to prove adoption, appellant
did not depose in the Court and PWI, her son and PW2, her neighbour did
not have personal knowledge of the fact of adoption; no documents except the
joint Account in Bank and freedom fighter pension nomination papers of 'R'       F
showing appellant as his daughter, were produced in the Court. Suit was
decreed. First appellate court dismissed the appeal and also noted that there
was no seal of the concerned authority on the pension nomination papers.
Second appeal before High Court by the appellant was dismissed. Hence the
present appeal.
                                                                                 G
     Dismissing the appeal, the Court

      HELD : Appellant has failed to prove that she was actually given in
adoption by her father and taken on adoption by late 'R'. Merely having a
joint bank account would not prove adoption in absence of any other cogent
                                    675
                                                                                 H
     676                       SUPREME COURT REPORTS [2001] SUPP. I S.C.R.

A    evidence. Therefore, both the Courts below have rightly rejected the plea of
     adoption set up by the appellant, and decreed the suit in favour of the
     Respondent. [67il-B, q

             L. Debi Prasad (D) by lrs. v. SflJI. Tribeni Devi and Ors., 1197011 SCC
     677, distinguished.
B
             lakshman Singh Kothari v. Smt. Rup Kanwar, [19621 1 SCR 477,
     referred to.

             CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5383 of
     2001.
c
           From the Judgment and Order dated 28.8.2000 of the Calcutta High
     Court in S.A.T. No. 2519 of2000.

          S.B. Sanyal, Ranjan Mukherjee, S.C. Ghosh, Ms. Manita Verma for the
     Appellant.
D
         A.K. Ganguly, S. Sukumaran, Raghu M., Ms. Divya Nair and V.K.
    Sidharthan for the Respondent.                        ·

             The Judgment of the Court was delivered by

E            PHUKAN, J. Leave is granted.

          This appeal is directed against the order dated 28.8.2000 passed by the
    Calcutta High Court in SAT No. 2519/2000. The High Court has dismissed the
    second appeal in limine.

F         The respondent herein filed a suit for ejectment of the appellant from
    ground floor of the house situated at 9/3, Prince Anwar Shah Lane, Calcutta.
    One Ramesh Chand Ganguly was inducted as a tenant by the respondent in
    respect of the said ground floor. Late Ramesh Chand Ganguly died intestate
    on 15.11.87 leaving no heir or heirs. According to the respondent, on the
G   death of late Ramesh Chand Ganguly the tenancy became extinct. The appellant,
    the daughter of one Pramatha Nath Banerjee, brother-in-law of Ramesh Chand
    Ganguly used to reside in the suit premises. The respondent asked the
    appellant to vacate the suit premises alleging that she was a trespasser. The
    appellant took the plea that she was the adopted daughter of late Ramesh
    Chand Ganguly. On these facts, the suit for eviction was filed which was
H   decreed by the trial court and affirmed by the appellate court. As stated
           NILIMA MUKHERJEE v. K.B. GHOSH [PHUKAN, J.]                    677
above, the second appeal was also dismissed. The only point for determination     A
is whether the appellant was the adopted daughter of late Ramesh Chand
Ganguly.

      Section 11 of the Hindu Adoption and Maintenance Act, 1956 lays
down the conditions for a valid adoption and for the present purpose Clause
VI is relevant, which is extracted below:                                         B
       "11. Other conditions for a valid adoption.-in every adoption, the
       following conditions must be complied with:-

        (i)-(v) .............. .

       (vi) the child to be adopted must actually given and taken in adoption
                                                                                  c
       by the parents or guardian concerned or under their authority with
       intent to transfer the child from the family of its birth or in the 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:                                                                  D
        Provided that the performance of datta homam shall not be essential
       to the validity of an adoption."

      This Court in lakshmon Singh Kothari v. Smt. Rup Kanwar, [1962] 1
SCR 477, inter alia, held that there cannot be a valid adoption unless the        E
adopted child is transferred from one family to another, the object being to
secure due publicity. As appellant has taken the pie~ that she was adopted
daughter of late Ramesh Chand Ganguly, she_,l)iu;( discharge the burden of
the factum of adoption and its validity. _,· /

      The appellant did not come to the witness box and on her behalf her         F
son - PW I was examined. No dcf~ument for adoption was produced before
the court. The trial court has als~ noted that this witness had no personal
knowledge about the fact of taking th.e appellant on adopti.on by late Ramesh
Chand Ganguly. Another witness - PW 2, who was a nejghbour, was examined
on behalf of the appellant to prove adoption. H.~;af§~ stated that he did not     G
know anything about the alleged )ldoption. 0 ;Y
                                   Yi~~;C7/   · ·~
       Some documents were pf€>'i:hiced to prove the fact of adoption.
Documents were produced to show that a bank account was in the joint name
of late Ramesh Chand Ganguly and the appellant. Late Ramesh Chand Ganguly
used to draw freedom fighters pension and a document was produced to              H
    678                      SUPREME COURT REPORTS [2001] SUPP. I S.C.R.
A show that in the nomination papers, the appellant was described as his
    daughter. These documents were duly considered by both the courts below
    and rejected by giving cogent reasons. Regarding nominating the appellant
    to draw pension on behalf of late Ramesh Chand Ganguly, the first appellate
    court has also noted that in the said paper there was no seal of the concerned
B   authority. Mere having a joint bank account would not prove adoption in
    absence of any other cogent evidence.

          From perusal of the judgments of both the courts and the evidence
    recorded we find that the appellant has miserably failed to prove that she was
    actually given in adoption by her father and taken on adoption by late
C   Ramesh Chand Ganguly. Accordingly, we hold that both the courts below
    have rightly rejected the plea of adoption set up by the appellant.

           Mr. S.B. Sanyal, learned senior counsel for the appellant has relied on
    a decision of this court in l. Debi Prasad (DJ by Lrs. v. Smt. Tribeni Devi
    and Ors., [ 1970] I SCC 677. That was suit for possession and this court
D   observed that it was a case of ancient transactions and, therefore, it was but
    natural that positive oral evidence was lacking and passage of time gradually
    wiped out such evidence. From the facts of that case we find that two close
    relatives, who were disinterested witnesses, deposed that ceremony of adoption
    was duly performed in the parental home of the child. In the case in hand,
    there is not an iota of evidence to show that any ceremony of adoption was
E   performed and the appellant was actually handed over for adoption by her
    parents to late Ramesh Chand Ganguly.

          We, therefore, find no merit in the present appeal and consequently it ·
    is dismissed. Party to bear their own costs.
F KKT.                                                        Appeal dismissed.