9911796707
TMI Blog2013 (1) TMI 858X X X X Extracts X X X X X X X X Extracts X X X X ..... abuva. 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 the Palki and Padukas. The respondents herein, who are also descendants of Sri Sant Eknath Maharaj, served notice dated 6.5.1971 upon Shri Vasant Bhagwant Pandav, stating that he must not give his son Raghunath, aged 8 years, in adoption to Smt. Laxmibai. C. On 10.5.1971, some of the respondents herein, filed Civil Suit No. 47 of 1971 against Shri Vasant Bhagwant Pandav, Smt. Laxmibai and Smt. Gopikabai, restraining them from effectuating the adoption of Raghunath. The aforementioned suit was withdrawn subsequently, in September 1974. It was during the pendency of the said suit filed by the respondents, that on 11.5.1971, Raghunath was adopted by Smt. Laxmibai after the performance of all requisite ceremonies which were conducted in the presence of a huge crowd, wherein the process of giving and taking of the child by the parents of Raghunath and by Smt. Laxmibai respectively, was held. The ceremony was performed by a priest, and several photographs were also taken on this occas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 registered adoption deed. The burden of rebutting the aforementioned presumption which was on the respondents, was not discharged effectively, as they examined only two witnesses, Narharibuva (DW.1) and Somnath (DW.2), and neither of them made any reference to the said deed at all. Therefore, in the absence of any attempt on the part of the respondents to rebut the said presumption, holding that the adoption deed was suspicious, is not sustainable. The appellate courts have categorically held, that in the past 375 years, a total of four adoptions have taken place, and that it was only in each of these cases that a male child from within the family was adopted, and not one from outside. Thus, the appellate courts committed an error in holding that there was a custom to this effect. In the absence of any evidence, a statement alleging that either one of the said adoptive parents wanted to take a child in adoption from outside, and that the same was attempted, must not be accepted. Moreover, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... licy: 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 the general law. A custom varying general law may be a general, local, tribal or family custom. A general custom includes a custom common to any considerable class of persons. A custom which is applicable to a locality, tribe, sect or a family is called a special custom. Custom is a rule, which in a particular family, a particular class, community, or in a particular district, has owing to prolonged use, obtained the force of law. Custom has the effect of modifying general personal law, but it does not override statutory law, unless the custom is expressly saved by it. Such custom must be ancient, uniform, certain, continuous and compulsory. No custom is valid if it is illegal, immoral, unreasonable or opposed to public policy. He who relies upon custom varying general law, must plead and prove it. Custom must be established by clear and unambiguous evidence. 8. In Dr. Surajmani Stella Kujur v. Durga Charan Hansdah AIR 2001 SC 938, this Court held that custom, being in derogation of a general rule, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Court held: "A custom is a particular rule which has existed either actually or presumptively from time immemorial, and has obtained the force of law in a particular locality, although contrary to or not consistent with the general common law of the realm......it must be certain in respect of its nature generally as well as in respect of the locality where it is alleged to obtain and the persons whom it is alleged to affect. xx xx xx xx Custom is authoritative, it stands in the place of law, and regulates the conduct of men in the most important concerns of life; fashion is arbitrary and capricious, it decides in matters of trifling import; manners are rational, they are the expressions of moral feelings. Customs have more force in a simple state of society. Both practice and custom are general or particular but the former is absolute, the latter relative; a practice may be adopted by a number of persons without reference to each other; but a custom is always followed either by limitation or prescription; the prac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 have taken place over a time-span of 375 years and even though each time, a male child was taken from within the same family, the same may merely have been done as a matter of convenience, and may additionally also be only to prevent the property of the family, from going to an outsider. There is nothing on record to establish that a child from outside the family could not have been adopted, or that any such attempt was ever made, but was resisted and discarded. The respondents/defendants could not establish that a male child from outside the family could not be adopted. Thus, in view of the fact that the defendants/respondents have never made any reference with respect to the existence of a custom prohibiting the adoption of a child from outside the family, either in the notice served by them on 6.5.1971 upon Vasant Bhagwant Pandav, or in their written statement, the mere fact that it may only be for the sake of convenience, that a child was taken in adoption from within the same family on each of the four occasions o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urden 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 construing a document, is under an obligation to examine the true purport of the document and draw an inference with respect to the actual intention of the parties. The adoption deed was registered on 11.5.1971, and the same provided complete details stating that the adopted child was 8 years of age, and that the adoptive mother was an old lady of 70 years of age. The adoptive child was related to Smt. Laxmibai. Her husband had expired in 1951 and it had been his desire to adopt a son in order to perpetuate the family line and his name. The natural parents of the adoptive child had agreed to give their child in adoption, and for the purpose of the same, the requisite ceremony for a valid adoption was conducted, wherein the natural parents, Vasant Bhagwant Pandav and Smt. Sushilabai Vasantrao Pandav, placed the adoptive child in the lap of the adoptive mother, in the presence of a large number of persons, including several relatives. A religious ceremony called "Dutta Homam", involving vedic rites was performed by a pandit, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 intended as a whole, there is nothing in the doctrine to prevent it being so regarded; to do so in not to prefer form to substance, or substance to form. It is the task of the court to ascertain the legal nature of any transaction to which it is sought to attach a tax or a tax consequence and if that emerges from a series or combination of transactions intended to operate as such, it is that series or combination which may be regarded." (emphasis added) 21. In S.T. Krishnappa v. Shivakumar & Ors., (2007) 10 SCC 761, this Court observed that the "adoption deed" must be read as a whole and that on reading the same in such a way, the intention of the parties with respect to whether the adoptive father/mother wanted to make an adoption according to law and not merely, to appoint an heir, must be clearly established. 22. In Debi Prasad (dead) by L.Rs. v. Smt. Tribeni Devi, AIR 1970 SC 1286, this Court held that the giving and receiving are absolutely necessary to the validity of an adoption. All that is required is that the natura ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d also to disprove the aforesaid adoption." (emphasis added) 25. The appellate courts could therefore, not have drawn any adverse inference against the appellants/plaintiffs on the basis of a mere technicality, to the effect that the natural parents of the adoptive child had acted as witnesses, and not as executors of the document. Undoubtedly, adoption disturbs the natural line of succession, owing to which, a very heavy burden is placed upon the propounder to prove the adoption. However, this onus shifts to the person who challenges the adoption, once a registered document recording the adoption, is brought before the court. This aspect must be considered taking note of various other attending circumstances i.e., evidence regarding the religious ceremony (giving and taking of the child), as the same is a sine qua non for valid adoption. 26. The trial court in this regard, has held that the fact that the natural parents of the adoptive child had signed alongwith seven other witnesses as attestants to the deed, and not as its executors, would not create any doubt regarding the validity of the adoption, or render the said registered document invalid, as they possessed sufficient k ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be a valid ceremony. The appellate courts have expressed their doubts only with reference to the fact that the witnesses that were examined in court, were all beneficiaries of the said adoption. Shri Vithal Pandit Mahajan (PW-4), by any means, cannot be labeled as an interested witness. He was a freedom fighter, who worked in the Hyderabad Liberation Movement. He was a medical man by profession, and was also involved in public life. He was not therefore, likely to be influenced by any of the parties, and he had duly supported the case of the appellants/plaintiffs regarding the adoption ceremony. The appellate courts adopted a rather unusual course, and drew adverse inference on the basis of the non-examination of the appellant/plaintiff, Smt. Laxmibai, observing that considering her old age, she could have taken recourse to the procedure, prescribed under Order XVIII Rule 16, Code of Civil Procedure, 1908, which lays down, that where a witness is about to leave the jurisdiction of the court, or where some other sufficient cause is shown to the court owing to which it would be prudent for it to ensure that his evidence is taken immediately, the court may, upon the application of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 957 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. State of Maharashtra AIR 2007 SC (Supp) 100; Kunju @ Balachandran v. State of Tamil Nadu, AIR 2008 SC 1381; Bipin Kumar Mondal v. State of West Bengal AIR201O SC 3638; Mahesh & Anr. v. State of Madhya Pradesh (2011) 9 SCC 626; Kishan Chand v. State of Haryana JT 2013( 1) SC 222). 31. Furthermore, there cannot be any dispute with respect to the settled legal proposition, that if a party wishes to raise any doubt as regards the correctness of the statement of a witness, the said witness must be given an opportunity to explain his statement by drawing his attention to that part of it, which has been objected to by the other party, as being untrue. Without this, it is not possible to impeach his credibility. Such a law has been advanced in view of the statutory provisions enshrined in Section 138 of the Evidence Act, 1872, which enable the opposite party to cross-examine a witness as regards information tendered in evidence by him during his initial examination in chief, and the scope of this provision stands enlarged by Section 146 of the Evidence Act, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to him by the latter. The trial Court found his deposition worthy of reliance, taking note of the fact that once he had deposed that he had himself taken the photographs, and had also developed the negatives, there was no reason to doubt his veracity. It was not put to him in the cross-examination, whether, for the purpose of making or preparing enlarged prints of the photographs from the negatives thereof, the negatives themselves were also required to be enlarged. Moreover, the defendants/respondents did not examine any expert on this point, who could have provided clarity with respect to whether the aforesaid negatives of the photographs of which enlarged prints were taken, were also required to be enlarged. It was in this backdrop that his version was found to be correct, and that the same came to support the case of the validity of the adoption. 33. The First Appellate Court dealt with the same issue and doubted the veracity thereof, on the ground that there was another photographer as per the version of events provided by this witness, who was not examined. Therefore, the occasion itself was deemed suspicious. Furthermore, the photographer failed to produce the record of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after seeing the demeanour of witnesses and having applied its mind, the appellate court is enjoined to keep that fact in mind. It has to deal with the reasons recorded and conclusions arrived at by the trial court. Thereafter, it is certainly open to the appellate court to come to its own conclusion if it finds that the reasons which weighed with the trial Court or conclusions arrived at were not in consonance with law." (See also: Dharamvir v. Amar Singh, AIR 1996 SC 2314; Santosh Hazari v. Purushottam Tiwai (Dead) by Lrs. , AIR 2001 SC 965; and G. Amalorpavam & Ors. v. R.C. Diocese of Madurai & Ors. (2006) 3 SCC 224) 36. Similarly, in Santosh Hazari v. Purushottam Tiwari, (2001) 3 SCC 179, this Court observed : "The appellate Court has jurisdiction to reverse or affirm the findings of the trial Court. First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. .....While writing a judgment of reversal the appellate Court must remain conscious of two principles. Firstly, the findings of fact based on conflicting evidence arrived at by the trial Court must weigh with the appellat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wrongly been doubted because there were two photographers and the other was not examined by the appellants/plaintiffs. It is not permissible to reject evidence on irrelevant grounds. Nor the judgment can be based on surmises and conjectures. (Vide: Ashish Batham v. State of Madhya Pradesh, AIR 2002 SC 3206; and Rathinam alias Rathinam v. State of Tamil Nadu & Anr., (2011) 11 SCC 140) 40. The appellate court has erred by considering the irrelevant material, while the most relevant evidence, i.e., the adoption ceremony and the adoption deed, have been disregarded on the basis of mere surmises and conjectures. The correctness or authenticity 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 alongwith 7 other witnesses. In such a fact-situation, by gathering the intention of the parties and by reading the document as a whole and considering its purport, it can be concluded that the adoption stood the test of law. We think that cause of justice would be served, instead of being thwarted, where there has been substantial compliance of the legal requirements, specifie ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
