' The applicants have been appointed receivers for managing the properties belonging to Swami Narayan Temple Estate Trust. In 1970 they filed a suit in the Court of the Sixteenth Civil Judge, Karachi for possession and mesne profits in respect of tenement No,58 situated in Swami Narayan Temple Estate, MA. Jinnah Road, Karachi alleging that their original tenant, one Mst. Jiva Bai had died issueless on or about the 26th June, 1970 leaving no heirs behind and consequently her tenancy in respect of the aforesaid tenement had come to an end. However, after the death of Jiva Bai defendants Dayalji and Purushotam had illegally occupied the aforesaid tenement and had remained in possession thereof till the filing of the suit. It was further alleged that the respondent on the 10th July, 1970 had taken over possession of the part of the said tenement and was occupying the same illegally. The applicants, therefore, also claimed mesne profits from the said defendants besides seeking their eviction from the said tenement.
2. The suit filed by the applicants was resisted only by the respondent who claimed himself to be the adopted son of the late Mst. Jiva Bai. According to the respondent, he had looked after the said Jiva Bai and provided for all her needs to the best of his ability and resources and had obeyed her in all respects up to the time of her death. Consequently, according to the respondent, the premises were being occupied by him by way of inheritance of tenancy rights on the death of his mother Mst. Jiva Bai..
3. The learned Trial Court framed issues in the case as follows:-
(1) Whether the defendant No,1 and ,2 are related to Mst. Jiva Bai, who died issueless? If yes, how were they related and whether they can inherit tenancy rights of the said Mst. Jiva Bai in respect of tenement in case?
(2) Whether the defendant No,3 is an adopted son of Mst. Jiva Bai? If yes, whether the adoption was legal and whether the adopted son can inherit the tenancy rights of the said Mst. Jiva Bai in respect of tenement in case?
(3) Whether the occupation of the defendants of the tenement in the case is illegal?
(4) Whether the plaintiffs are entitled to mesne profits in respect of tenement in the case? If yes, at what rate?
(5) Whether the suit has not been valued properly?
(6) Whether the suit is not maintainable by virtue of Rent Restriction Ordinance?
(7) What should the decree be?
4. The applicants examined one witness, namely, Hot Chand in support of their case whereas the respondent examined Bhawandas, Pchlaj B. Bahuai and Amir Ali in support of his case.
5. On the basis of the evidence given by the aforesaid witnesses, the learned trial Court held that the respondent was the adopted son of Mst. Jiva Bai and therefore, was entitled to retain the said tenement through inheritance and consequently, the suit filed by the applicants was dismissed.
The applicants appealed before the learned Seventh Additional District Judge, Karachi but again without any success, and henced the present Revision.
6. Challenging the impugned order, firstly, on the legal plane, Mr. Abbas Zia has contended that the respondent, according to his own admission, was a married man at the time of his alleged adoption by Mst. Jiva Bai and therefore, his adoption was not possible under the Hindu Law.
According to the learned Advocate only the parents could give a child in adoption. The second contention of Mr. Abbas Zia was that admittedly Mst. Jiva Bai had a step-son through her husband and consequently, according to him, adoption of the respondent was not permissible even on that account. On the factual plane, the argument of Mr. Abbas Zia mainly was that findings of both the learned Courts below in respect of the adoption are not based upon evidence and hence the same are liable to be reversed.
7. So far as the first two contentions of Mr. Abbas Zia are concerned, Mr. Shamdas B. Chhangani, learned Counsel for the respondent has invited my attention to Chapter XXVI of Hindu Law by Gupte, Article 259 page 994, according to which, even a married person could be adopted under the. Hindu Law. Admittedly, Mst. Jiva Bai was a Gujrati Hindu and the respondent is a Sindhi and consequently, both the learned Courts below have relied upon the Bombay School while explaining their view that adoption of the respondent by Mst. Jiva Bai could be possible. According to the said School, even a widow could adopt a son. As to the argument that Mst. Jiva Bai had a step-son through her husband and therefore, it was not possible for her to adopt the respondent as her son, the contention of Mr. Shamdas was that since admittedly the step-son of Mst. Jiva Bai had migrated to India and was not in Pakistan there could be no legal obstacle in her way to adopt the respondent. So far as the argument simpliciter is concerned, there appears to be lot of force in the same. I am also inclined to agree with Mr. Shamdas that presumption was rightly drawn by the learned Courts below that Mst. Jiva Bai being of a Gujrati origin, was governed by the Bombay School. According to the Bombay School, a widow could adopt a son with or without the authority of her husband. A ceremony called Datta Homan was prescribed by the Texts but according to Hindu Law by Dr. Tahir Mahmood, it was not clear if performance of such a ceremony was essential for giving validity to adoption. However, no ceremony was required among the Sudras and the Jains. In Punjab, no ceremony was required by law. In view of the aforesaid legal position I have no hesitation in agreeing with Mr. Shamdas that adoption in the present case could be possible, however, the main question is whether respondent No,2 had actually been adopted by Mst. Jiva Bai.
8. In this regard, according to the evidence of the respondent, Mst. Jiva Bai who was about 65 years of age and a widow had a child who had died in 1952. She had no other relative. Mst. Jiva Bai then adopted the respondent in 1962 as her son and since then he started living with her as her son. The respondent also admitted that his caste and that of Mst. Jiva Bai was not the same as the latter was a Ganatra whereas the respondent was a Popate. However, according to the respondent, he and Jiva Bai both were Lohanas. Mst. Jiva Bai adopted the respondent as there was no one to look after her and the respondent had been maintaining her. The respondent, however admitted that his adoption had not been got noted by Mst. Jiva Bai either with the Authorities of the Temple estate or with any Government Authority. The respondent further stated that Mst. Jiva Bai had made on oral will that after her death, the respondent would enjoy the tenancy rights in the flat.
The evidence of the respondent finds support from that of his witnesses only to the extent that Mst.
Jiva Bai used to call him her son and he used to address her as mother. It was further stated by Pehlaj B. Bahuai, D.W. No,3 that the respondent also used to maintain Mst. Jiva Bai and the respondent used to treat her as his mother and she used to treat him as her son.
9. The evidence recorded by the learned trial Court shows that apart from his own word, the respondent was unable to produce any authentic evidence in regard to his alleged adoption by Mst. Jiva Bai. Both the learned Courts below have found this evidence to be sufficient together with the supporting evidence of the witnesses for the defendant to establish adoption. But one cannot be oblivious of the fact that the respondent was interested in advancing his own case but apart from the respondent there was no other authentic evidence to establish adoption of the respondent by Mst. Jiva Bai. No doubt, a formal ceremony may not be required to give validity to adoption but there must be some other evidence produced before the Court to prove the same. All that the witnesses of the respondent have stated is that the respondent used to address Mst. Jiva Bai and treat her as his mother and she used to call him her son and treat him as such, but such evidence is not sufficient to prove adoption. It is pertinent to note that in this country, in case of civil litigation, implicit faith cannot be placed on the testimony of witnesses who are interested in advancing their own cause because it is not uncommon here that in innumerable cases people give false evidence on oath, therefore, the Courts must always seek independent corroboration of such evidence before reliance can be placed thereon. In the present case, as pointed out earlier, no such evidence can be found on the record which may conclusively lead to an inference that the respondent had actually been adopted by Mst. Jiva Bai because the evidence of the respondent in this regard goes uncorroborated in material particulaRs, Under such circumstances, I fully agree with Mr. Abbas Zia that the learned Courts below have based their findings on evidence from which it could not be conclusively inferred that the respondent was the adopted son of Mst. Jiva Bai.
' In the result, I accept this Revision and set aside the judgments of the two Courts below. The parties are left to bear their own costs.