TMI Blog2013 (1) TMI 858X X X X Extracts X X X X X X X X Extracts X X X X ..... appellate courts are set aside. - CIVIL APPEAL NO. 2058 OF 2003 - - - Dated:- 29-1-2013 - CHAUHAN, B.S (DR) AND GOPALA GOWDA, V., JJ. JUDGEMENT Dr. B.S. CHAUHAN, J. 1. This appeal has been preferred against the impugned judgment and order dated 9.2.2001, passed by the High Court of Judicature at Bombay (Aurangabad Bench) in Second Appeal No. 906 of 1980, by way of which the High Court has affirmed the judgment and order of the First Appellate Court in Regular Civil Appeal No. 92 of 1977, dismissing Civil Suit No. 52 of 1971, which stood allowed by the trial court vide judgment and decree dated 15.3.1977. 2. The facts and circumstances giving rise to this appeal are : A. One Narayanbuva Gosavi, a descendant of Shri Sant Eknath Maharaj was vested with the exclusive right to carry the Palki and Padukas of Sri Sant Eknath Maharaj from Paithan to Pandharpur at the time of Ashadi Ekadashi. He died in 1951, leaving behind his widow, namely, Smt. Laxmibai. Krishnabuva. Brother of Narayanbuva had pre-deceased him leaving behind his widow, Smt. Gopikabai. B. After the death of Narayanbuva, the appellant Smt. Laxmibai, was vested with the exclusive right to carry ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ieved, the respondents preferred Civil Appeal No. 92 of 1977 and for certain reliefs, the appellants also filed a cross appeal. Various points were considered by the First Appellate Court, after which, the decree of the Civil Court was reversed vide judgment and decree dated 1.8.1980, by which it was held that the respondents had proved, that there did in fact exist a custom which prohibited the taking of a male child in adoption from outside. The adoption itself was suspicious as independent witnesses were not examined. The witnesses who proved the validity of the adoption were interested witnesses, and the adoption deed was also suspicious. F. Aggrieved, the appellants preferred a Second Appeal, which was dismissed by the High Court vide impugned judgment concurring with the First Appellate Court. Hence, this appeal. 3. Shri Aarohi Bhalla, learned counsel appearing for the appellants, has submitted that there is a presumption of validity with respect to the registered adoption deed under Section 16 of Hindu Adoptions and Maintenance Act, 1956 (hereinafter referred to as the Act 1956 ). Therefore, the appellate courts committed an error in doubting the validity of the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clusion as regards the suspicious nature of the adoption deed and adoption ceremonies, and has also rightly concluded, that since over a period of 375 years only four adoptions have taken place, and as in each case, a male child was adopted only from within the family, there certainly existed a custom which did not permit the adoption of a male child from outside the family. Such findings do not warrant any interference by this court. The appeal lacks merit, and is therefore, liable to be dismissed. 5. We have considered the rival submissions made by learned counsel for the parties, and perused the record. 6. Section 3(a) of the Act 1956 defines 'custom' as follows: 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 . 7. Custom is an established practice at variance with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccession 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. 11. In Salekh Chand (supra), this Court held as under: Where the proof of a custom rests upon a limited number of instances of a comparatively recent date, the court may hold the custom proved so as to bind the parties to the suit and those claiming through and under them. All that is necessary to prove is that the usage has been acted upon in practice for such a long period and with such invariability as to show that it has, by common consent, been submitted to as the established governing rule of a particular locality. A custom may be proved by general evidence as to its existence by members of the tribe or family who would naturally be cognizant of its existence, and its exercise without controversy. 12. In Bhimashya Ors. v. Smt. Janabi @ Janawwa, (2006) 13 SCC 627, this Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ablish the existence of any custom. Moreover, while serving notice dated 6.5.1971 upon Vasant Bhagwant Pandav, the natural father of Raghunath, asking him not to give his son in adoption, the defendants/respondents made no reference to the existence of any such special custom in their family. The documents submitted on record also did not reveal the existence of any such custom prevailing in their family, and no reference was ever made in this regard by them in their pleadings. The burden of proof with respect to this issue, was placed upon the defendants/respondents, which they failed to discharge. The First Appellate Court rejected the argument of the appellants/plaintiffs, to the effect that the issue of the existence of such custom, was neither specifically pleaded, nor proved, by the defendants/respondents. After considering a large number of cases decided by various courts, the High Court while deciding Second Appeal reached the conclusion that there was, in fact, a special custom that existed, which required the taking of a child from within the same family. 15. We have appreciated the evidence on record, and are of the view that in the present case, only four adoptions h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adopted child was 8 years of age at the time of adoption. Laxmibai, the adoptive mother, was 70 years of age at the relevant time and there is in fact, a registered adoption deed. Therefore, there is a presumption under Section 16 of the Act 1956, to the effect that the aforementioned adoption has been made in compliance with the provisions of the Act, 1956 until and unless such presumption is disproved. In the event that a person chooses to challenge such adoption, the burden of proof with respect to rebutting the same, by way of procedures accepted by law, is upon him. In the instant case, the defendants/respondents never made any attempt whatsoever, to rebut the presumption under Section 16 of the Act 1956. The defendants have examined two witnesses, namely Narharibuva (DWI) and Somnath (DW2). We have been taken through their depositions, in which there has been no reference whatsoever to the registered adoption deed, let alone any attempt of rebuttal. Therefore, the defendants/respondents have failed to discharge the burden of rebuttal placed upon them, with respect to the presumption of validity of adoption under Section 16 of the Act 1956. 16. Undoubtedly, the court while ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f. Intention must primarily be gathered from the meaning of the words used in the document, except where it is alleged and proved that the document itself is a camouflage. If the terms of the document are not clear, the surrounding circumstances and the conduct of the parties have also to be borne in mind for the purpose of ascertaining the real relationship between the parties. If a dispute arises between the very parties to the written instrument, then intention of the parties must be gathered from the document by reading the same as a whole. 20. In Vodafone International Holdings B.V v. Union of India Anr., (2012) 6 SCC 613, while dealing with a similar situation, this Court held: The Court must look at a document or a transaction in a context to which it properly belongs to. While obliging the court to accept documents or transactions, found to be genuine, as such, it does not compel the court to look at a document or a transaction in blinkers, isolated from any context to which it properly belongs. If it can be seen that a document or transaction was intended to have effect as part of a nexus or series of transactions, or as an ingredient of a wider transaction i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... their signatures. 24. In Atluri Brahmanandam (D), Thr. LRs. v. Anne Sai Bapuji, AIR 2011 SC 545, the Court held: The aforesaid deed of adoption was produced in evidence and the same was duly proved in the trial by the evidence led by PW-1, the respondent. We have carefully scrutinized the cross-examination of the said witness. In the entire cross-examination, no challenge was made by the appellant herein either to the legality of the said document or to the validity of the same. Therefore, the said registered adoption deed went unrebutted and unchallenged. We have already referred to the recitals in the said documents which is a registered document and according to the recitals therein, the respondent was legally and validly adopted by the adoptive father. Since the aforesaid custom and aforesaid adoption was also recorded in a registered deed of adoption, the Court has to presume that the adoption has been made in compliance with the provisions of the Act, since the respondent has utterly failed to challenge the said evidence and also to disprove the aforesaid adoption. (emphasis added) 25. The appellate courts could therefore, not have drawn any adverse inference agai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nesses, the same 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, but 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 of the Act 1956, 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 made any reference to the same. We have no hesitation in holding that the document was valid, and that the same could not have been discarded by the appellate courts. 28. There is ample evidence on record to prove the occurrence of the giving and taking ceremony. The trial court, after appreciating such evidence, found the same to be a valid ceremony. The appellate courts have expressed their doubts only with reference to the fact that the witnesses that were examined ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vidence and also whether a deposition of a witness is to be doubted merely on the ground that the witness happened to be related to the plaintiff. 30. In the matter of appreciation of evidence of witnesses, it is not the number of witnesses but quality of their evidence which is important, as there is no requirement in law of evidence that any particular number of witnesses is to be examined to prove/disprove a fact. It is a time- honoured principle, that evidence must be weighed and not counted. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or otherwise. The legal system has laid emphasis on value provided by each witness, rather than the multiplicity or plurality of witnesses. It is quality and not quantity, which determines the adequacy of evidence as has been provided by Section 134 of the Evidence Act. Where the law requires the examination of at least one attesting witness, it has been held that the number of witnesses produced, do not carry any weight. (Vide: Vadivelu Thevar v. State of Madras; AIR 1957 SC 614; Jagdish Prasad v. State of M.P. AIR 1994 SC 1251; Sunil Kumar v. State Govt. of NCT of Delhi AIR 2004 SC 552; Namdeo v. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid ceremony. He further deposed that he had developed the photographs taken by him, and also identified the photographs produced under exhibit 112/18. Photographs marked as serial nos.11, 12 and 13, alongwith their negatives, were produced by him in court. Thus, the photographs as exhibits 251, 252 and 253 were admitted in evidence. He also proceeded to identify Laxmibai appellant, and the adopted son in these photographs, as also Vasantrao, who was present in court and stated that he had in fact, been present at the time of adoption. He was cross-examined thoroughly, and was asked a large number of questions regarding his dealings with clients. However, in the course of the cross-examination, he was not asked whether he had followed the practices mentioned by him in the case of Laxmibai as well. He denied suggestions made to him with respect to whether the aforesaid photographs had been developed by him by resorting to trick photography, in view of the fact that he had certain obligations towards Vasantrao Pandav, on account of financial assistance provided to him by the latter. The trial Court found his deposition worthy of reliance, taking note of the fact that once he had depo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y matter in issue and the decision hinges upon the credibility of the witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judge s notice, or where there is a sufficient balance of improbability to displace his opinion as to where credibility lies, the appellate court must interfere with the finding of the trial Judge on a question of fact. 35. In Jagdish Singh v. Madhuri Devi, AIR 2008 SC 2296, this Court held: When there is a conflict of oral evidence on any matter in issue and its resolution turns upon the credibility of the witnesses, the general rule is that the appellate court should permit the findings of fact rendered by the trial court to prevail unless it clearly appears that some special feature about the evidence of a particular witness has escaped the notice of the trial court or there is a sufficient balance of improbability to displace its opinion as to where the credibility lies.... When the Court of original jurisdiction has considered oral evidence and recorded findings after seeing the demeanour of witnesses and having applied its mind, the appellate court is enjoined to keep that fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent must not be clouded by the facts of the case. 38. 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 in evidence as the same were not proved as per law for the cogent and proper reasons mentioned therein. 39. Respondents/defendants did not examine any expert to discredit the testimony of their witness. The adoption had taken place on 11.5.1971, and the evidence of Binorkar (PW-2) was recorded on 7.2.1977. Thus, we are of the view that the view taken by the appellate courts is entirely impracticable and does not resonate with the attending circumstances, particularly, when the photographer (PW- 2), had denied the suggestion that he had not brought the Account Bill Books etc. of his studio as he had not taken the photographs as stated by him, on 11.5.1971 i.e., the day of adoption. His evidence has also wrongly been doubted because there were two photographers and the other was not examined by the appellants/p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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