Shri witnesses. A priest performed the ceremonies and

Shri Sant Eknath Maharj’s descendant Narayanbuva Gosavi was
given an exclusive right to carry the Palki and Padukas of Sri Sant Eknath
Maharaj. The Palki was to be carried from Paithan to Pandharpur at the time of
Ashadi Ekadashi. Narayanbuva died in 1951, leaving behind his widow, Smt.
Laxmibai Krishnabuva. Narayanbuva’s brother also died leaving behind his widow,
Smt. Gopikai.

Narayanbuva vested the right to carry Palki and Padukas to
Smt. Laxmibai. Respondents who were also the descendent of Sri Sant Eknath
Maharaj, issued notice on 6.05.1971 upon Shri Vasant Bhagwantrao Pandav,
stating that he should not give his 8 years old son Raghunath to Smt. Laxmibai.

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Respondent filed a civil suit against Vasant Bhagwantrao
Pandav, Laxmibai and Gopikabai, restraining them to effect the adoption of
Raghunath, which was later on withdrawn.

On 11.05.1971, Smt. Laxmibai adopted Raghunath after
performing all necessary ceremonies conducted in front of the crowd. Even the
process of physical give and take took place between Vasant Bhagwantrao Pandav
and Smt. Laxmibai. Adoption deed was also signed,executed and registered on the
same day, which was duly signed by seven witnesses. A priest performed the
ceremonies and several photographs were taken on that occasion.

Smt. Laxmibai and Gopikabai filed a Suit against the
Respondents for causing disturbance and creating hindrances in the performance
of duties of the Appellants with respect to the Palki and Padukas. The suit was
filed seeking perpetual injunction, preventing respondents from causing any
more obstruction.

The trial court held the adoption valid based on the
evidences such as adoption deed, witnesses, photographs and performance of
ceremonies. The Court observed that there was no custom regarding prohibition
of male child from outside. Raghunath was entitled to inherit the properties of
Smt. Laxmibai after her death.

Respondents to which the Appellants filed cross appeal made
the Civil appeal. The First Appellate Court reversed the decree of Civil Court,
when respondents proved that there exist a custom prohibiting Smt. Laxmibai to
adopt a child from outside family. Aggrieved by this order, appeal was made in
High Court, which was dismissed subsequently. Issues raised in this case are
twofold-

·        
Whether the adoption of a child in a family (which
had been done four times in 375 years) is sufficient to be named as custom.

·        
Whether mere technicality can defeat the
legality and validity of the adoption documents.

·        
Whether the adoption deed and ceremonies
performed were legal and valid.

The appellate courts have categorically held that in past
375 years, four children were adopted only within the family and not from the
outside. Thus, the appellate court made a grave mistake by interpreting such
event as some kind of a custom. The SC observed that adoption of only four
children in the past almost four centuries, does not constitute a custom or
establishes anything related to custom. Even the counsel on behalf of the
respondents never cross-examined the photographer who was present and clicked
pictures at the time of adoption. Since no cross-examination took place with
respect to any doubt regarding the genuineness of adoption or photographs. In
the absence of such, the appellate court cannot draw any inference, even though
the photographer proved the validity of adoption and photographs. Hence, the
judgement and decrees of appellate court is liable to be set aside and
judgement of trial court deserves to be re-established.

Section 3(a)1
states that:

“The expressions, ‘custom’ and ‘usage’ signify any rule which, having
been continuously and uniformly observed for a long time, has obtained the
force of law among Hindus in any local area, tribe, community, group or family:

Provided that the rule is certain and not unreasonable or opposed to
public policy: and

Provided further that, in the case of a rule applicable only to a
family, it has not been discontinued by the family.”

 

Custom is a rule, which is followed by the family, and has
obtained the force of law, owing to continuous and prolonged use in the family.
It has the authority to overrule the personal laws, but not statutory law. Such
custom needs to be ancient, uniform, certain, continuous and compulsory. Burden
of proof rests on the party who relies upon such custom.

The SC focused on the case “Dr. Surajmani Stella Kujur vs.
Durga Charan Hansdah”2,
the SC passed the judgement holding that Custom needs to be construed strictly.
The Party relying upon a custom, is obliged to establish it by way of clear and
unambiguous evidence.

 

Reliance was placed on the case “Ramalakshmi Ammal Vs.
Sivanatha Perumal Sethuraya3,
it was held, “It is essential that
special usage, which modifies the ordinary law of succession is ancient and
invariable; and it is further essential that such special usage is established
to be so, by way of clear and unambiguous evidence. It is only by means of such
evidence, that courts can be assured of their existence, and it is also essential
that they possess the conditions of antiquity and certainty on the basis of
which alone, their legal title to recognition depends.”

So far in the case, the trial court came to the conclusion
that evidence put forward by the Respondents regarding adoption of four
children in 375 years does not prove that the custom exist in the family of
Smt. Laxmibai. Even the respondents did not mentioned this existing custom to
Shri Vasant Bhagwantrao Pandav. The documents submitted on record also did not
contain this existing custom, and no reference was made during the pleadings
too. The SC evaluated the evidence and concluded that in the present case,
although four children were adopted in 375 years withing the family, the same
was done in accordance to their convenience and wanted to prevent their family
property going into the hands of the outsider. There has been nothing relevant
which can prove that the child from outside cannot be adopted. Thus, the SC
held that the findings of the appellate court on the issue, is not based on any
evidence and that the appellate court has committed a grave error in holding
that the respondents have successfully proved the existence of such custom.
This is not the case where there have been adequate judicial pronouncements on
the said issue previously, of which the court have taken judicial notice.

Special customs are required strict proving in the court to
which the respondents failed to do the same. Section 10 of the Hindu Adoption
and Maintenance Act, 1956, lays down that the child up to the age of 15 years
can be adopted. In the present case, Raghunath was 8 years old, which is
successfully in consonance with the said section. Section 11 prescribes, that
in case a female adopts the child, there should be the age gap of about 21 years
between the female and the child. If, to apply these sections, in the present
case, Raghunath was 8 years old at the time of adoption and Smt. Laxmibai was
70 years old, and in fact there was registered adoption deed, which  presumes the validity of the adoption. Under
Section 16, it is presumed that the adoption in the present case happens to be
valid and in compliance with the Hindu Adoption and Maintenance Act, 1956
unless such presumption is disproved. In the present case, the Respondents
never attempted to rebut the presumption under Section 16. Therefore, the
respondents failed to discharge the burden of rebuttal with respect to the
presumption of validity of adoption under Section 16 of Hindu Adoption and
Maintenance Act, 1956.

In Delta International
Limited vs. Shyam Sundar Ganeriwalla and Anr.4
And Debi Prasad (dead) by L.Rs. vs. Smt.
Tribeni Devi,5
the SC held that the intention of the parties is gathered only from the
documents. Primarily, the intentions should be gathered from the meaning of the
words used in the documents. Obviously, this will not apply if it has proved
that the document is invalid or camouflage. If the wordings of the document is
not clear, the body language, surrounding circumstances and conducts of the
parties has to be considered and to be kept in mind for ascertaining the real
relationship between the parties. That the giving and receiving of the child is
of utmost necessity to validate the adoption. The adopting father/mother need
to ask the natural parents to give the child in adoption.

Furthermore, in the case Mst.
Deu and Ors. Vs. Laxmi Narayan and Ors.6,the
Court specifically held that the registered documents (adoption deed) under
Section 16 of Hindu Adoption and Maintenance Act, 1956 when produced in front
of the court and duly signed by the parties, are presumed to be valid documents
resulting in validation of the adoption. However, this presumption will not
apply if the said documents are disproved. In view of Section 16, it is open
for the party to attempt to disprove the deed of adoption by initiating
independent proceedings.

The trial court, in this regard, held that since the natural
parents of the adoptive child had signed along with seven witnesses, and not as
executors, they would not create any doubt about the validity of the adoption
or render the said documents as void. This is because the natural parents have
sufficient knowledge of the terms and nature of the document, immediately after
execution. The appellate court gave the decision merely based on the
technicality that only interested witnesses had been examined and the court
rejected the validity of the said document, believing that witnesses who wanted
to give weight to their case, could not be relied upon.

The appellate court further held that the adoption deed had
neither been properly executed, nor satisfactorily proved, owing to the fact
that the natural parents of the adopted child had not signed the adoption deed
as executors but as witnesses, and that it could not be held to be a valid
deed. Undoubtedly, a mere signature or thumb impression on a document is not
adequate with respect to proving the contents of a document. However, in a case
where the person who has given his son in adoption, appears in the witness box
and proves the validity of the said document, the court ought to have accepted
the same, taking into consideration the presumption under Section 16, and
visualising the true purport of the document, without going into such
technicalities. This must be done particularly in view of the fact that the
Defendants/Respondents have not made even a single attempt to challenge the
validity of the said document. In fact, they have not referred to the same. The
SC had no hesitation in holding that the document valid, which was discarded by
the appellate courts.

The appellant was 70 years old and hale & hearty. Hence,
there was no occasion for her to file Order XVIII Rule 16 of Code of Civil
Procedure, which provides for taking evidence De Bene Esse for recording statement prior to the commencement of
the trial. Mere death apprehension cannot be sufficient to examine the witness
immediately. Moreover, it is the discretion of the court to conclude as to
whether there is a sufficient cause or not to examine the witness immediately.

At the commencement of the trial, Smt. Laxmibai died and
other witnesses entered witness box and were examined except Smt. Gopikabai. Therefore,
the question that arises is whether the court has to weigh or count the
evidence and whether a deposition of witness is to be doubted because the
witness is a relative of the Plaintiff.

The number of witnesses is not what the court looks at, but
it focuses on the quality of the evidence that the witnesses provide, as there
is no limitation in the Indian Evidence Act regarding number of witnesses. The
test is whether the evidence has ring of truth, is cogent, credible and
trustworthy or otherwise.7
“The legal system has laid emphaisis on
value provided by each witness, rather that the multiplicity or plurality of
witnesses”8.

There is no prohibition in law for the appellate court to
re-appreciate the evidence where compelling and substantial reasons exist. The
evidences are required to be viewed collectively. The statement of a witness is
read as a whole because the reliance on a mere line in a statement of a witness
is not permissible. The judgment of a court can be tested on “touchstone of dispassionate judicial
scrutiny based on a complete and comprehensive appreciation of all views of the
case, as well as on the quality and credibility of the evidence brought on
record”.

The High Court dealt with an issue and disbelieved the
testimony of said witness, observing as under: Apparently, the photographer did
not produce any record whatsoever other than the negative and the photographs.
Therefore, the lower appellate Court had rightly concluded that the photographs
could not be taken as evidence as the same were not proved.

The appellate court has made error by considering the
irrelevant material, while the most relevant evidence, i.e., the adoption
ceremony and the adoption deed, have been disregarded.  The validity of adoption deed is not disputed.
What is disputed is that the natural parents of adoptive child who were
definitely executing parties of the deed have signed as witnesses along with
seven other witnesses. In such a situation, by gathering the intention of the
parties and by reading the document as a whole and considering its claim, it
can be concluded that the adoption stood in accordance with the law. When
substantial justice and technical considerations are up against each other, the
cause of substantial justice deserves to be preferred. “The court in the large interest of justice may overlook a mere
irregularity or a trivial breach of law for doing real and substantial justice
to the parties and pass orders which will best serve the interest of justice.”9
Hence, the SC allowed the appeal by setting aside the judgement and decrees of
the appellate court and re-establishing the decree of the trial court.

 

 

CONCLUSION

Therefore, I support the judgement made by SC and the trial
court, because all conditions required to fulfil a practice as custom failed. The
respondents were unable to establish the existence of an such custom that
prevails in the family (male child has tobe adopted from within the family) and
nor they were able to disprove the validity and legality of the adoption deed.  

“Custom signify any
rule which, having been continuously and Uniformly observed for a long time,
has obtained the force of law among Hindus in any local area, tribe, community,
group or family.”10

1 The Hindu Adoption and
Maintenance Act, 1956

2 MANU/SC/0099/2001; AIR
2001 SC 938

3 MANU/PR/0027/1872; 14 Moo.
Ind. App. 570

4 MANU/SC/0258/1999; AIR
1999 SC 2607

5 MANU/SC/0354/1970; AIR
1970 SC 1286

6 MANU/SC/1351/1998; (1998)
8 SCC 701

7 Vadivelu Thevar Vs. State
of Madras (MANU/SC/0039/1957); Namdeo vs. State of Maharashtra (AIR 2007 SC
(Supp) 100); Kishan Chand vs. State of Haryana (JT 2013 (1) SC 222).

8 Section 134 of Indian
Evidence Act, 1872

9 Laxmibai (dead) thr. L.Rs.
vs. Bhagwantbuva (dead) thr. L.Rs. (MANU/SC/0072/2013); (www.manupatra.com).

10 Pranav Gupta, Jurisprudence of Custom, Linkedin,
(December 28, 2016), https://www.linkedin.com/pulse/jurisprudence-custom-pranav-gupta

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