# 1 S.C.R. 632 LAXMIBAI (DEAD) THR. LRS. & ANR v. BHAGWANTBUVA (DEAD) THR. LRS. & ORS

- **Citation:** [2013] 1 S.C.R. 632
- **Court:** Supreme Court of India
- **Decided:** 2013-01-29
- **Case number:** Civil Appeal No. 2058 of 2003
- **Bench:** Dr. B.S. Chauhan, V. Gopala Gowda
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1-s-c-r-632-laxmibai-dead-thr-lrs-anr-v-bhagwantbuva-dead-thr-lrs-ors-28794
- **Pages:** 33

## Headnote

Hindu Adoptions and Maintenance Act, 1956:
c
s.16 read with ss.10 and 11 - Adoption of male child by
a female - Adoption deed got registered - Presumption of a
valid adoption - Held: If there is a registered adoption deed,
there is a presumption uls 16 to the effect that the adoption
has been made in compliance with the provisions of the Act
D until and unless such presumption is disproved - Burden to
rebut the presumption lies on the person who challenges such
adoption - In the instant case, defendants/respondents never
made any attempt whatsoever, to rebut the presumption.
ss. 10 and 11 read withs. 16 - Adoption - Held: In the
E instant case, there is ample evidence on record to prove
occurrence of giving and taking ceremony - Adoptive mother
put her thumb impression on the deed, and it was also signed
by natural parents of child - The deed was signed by
witnesses - Appellate courts could not have drawn any
F 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 - It is, therefore, held that the
document was valid.
G
H
Custom - Defendant pleading a special family custom
that a child from outside the family could not have been ·
adopted - Held: He who relies upon custom varying general
law, must plead and prove it - Special customs which prevail
632
---·-·
LAXMIBAI (DEAD) THR. LRS. v. BHAGWANTBUVA 633
(DEAD) THR. LRS.
in a family, a particular community etc., require strict proof A
and the defendants/respondents have faiied to prove the
same - Evidence Act, 1872 - s.57 - Judicial notice.
Code of Civil Procedure, 1908:.
0. 18, r. 16. - Power to examine witness immediately -
B
Held: Mere apprehension of death of a witness cannot be a
sufficient cause for immediate examination of a witness -
More so, it is the discretion of court to come to a conclusion
as to whether there is a sufficient cause or not to examine the
. witness immediately - In the instant case, plaintiff was just C
above 70 years of age and hale and hearty and, as such,
there was no occasion for her to file an application under 0.
18, r. 16 CPC for recording statement prior to commencement
of trial.
D
Evidence Act, 1872:
s.134 read with ss.138 and 146 - Number of witnesses
and cross-examination - It is not the number of witnesses but
quality of their evidence which is important - If a party wishes
to raise any doubt as regards correctness of statement of a E
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 - Without this, it is not possible
to impeach his credibility.
The appellant's husband, being the descendant of
Shri Sant Eknath Maharaj, was vested with exclusive right
F
to carry the Palki and Padukas of Sant Maharaj from
Paithan to Pandharpur, at -the time of Ashadi Akadashi;
and after her husband's death, the appellant was vested G
with the said right. (The brother of appellant's husband
had predeceased him.) On 11.5.1971 the appellant
adopted 'R', the son of 'VBP'. On the same day the
adoption deed was executed and registered. The
appellant and her sister-in-law (the wife of the deceased H
634
SUPREME COURT REPORTS
[2013] 1 S.C.R.
A brother of appellant's husband) filed a suit against the
respondents seeking a decree of perpetual injunction
preventing them from causing any obstruction or
interf'erence in exercise of their exclusive rights to
carrying the Palki and Padukas. The trial court decreed
B the suit, inter a/ia, holding that the adoption was valid. The
appellant died during the trial and the adopted child
inherited all her property. However, the first appellate
court held that the respondents had proved that there
existed a custom which prohibited the taking of a male
C child in adoption from outside. The adoption deed was
also held to be suspicious. The second appeal of the
appellants, havin

## Text

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A
B
[2013) 1 S.C.R. 632
LAXMIBAI (DEAD) THR. LRS. & ANR.
v.
BHAGWANTBUVA (DEAD) THR. LRS. & ORS.
(Civil Appeal No. 2058 of 2003)
JANUARY 29, 2013
{DR. B.S. CHAUHAN AND V. GOPALA GOWDA, JJ.]
Hindu Adoptions and Maintenance Act, 1956:
c
s.16 read with ss.10 and 11 - Adoption of male child by
a female - Adoption deed got registered - Presumption of a
valid adoption - Held: If there is a registered adoption deed,
there is a presumption uls 16 to the effect that the adoption
has been made in compliance with the provisions of the Act
D until and unless such presumption is disproved - Burden to
rebut the presumption lies on the person who challenges such
adoption - In the instant case, defendants/respondents never
made any attempt whatsoever, to rebut the presumption.
ss. 10 and 11 read withs. 16 - Adoption - Held: In the
E instant case, there is ample evidence on record to prove
occurrence of giving and taking ceremony - Adoptive mother
put her thumb impression on the deed, and it was also signed
by natural parents of child - The deed was signed by
witnesses - Appellate courts could not have drawn any
F 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 - It is, therefore, held that the
document was valid.
G
H
Custom - Defendant pleading a special family custom
that a child from outside the family could not have been ·
adopted - Held: He who relies upon custom varying general
law, must plead and prove it - Special customs which prevail
632
---·-·
LAXMIBAI (DEAD) THR. LRS. v. BHAGWANTBUVA 633
(DEAD) THR. LRS.
in a family, a particular community etc., require strict proof A
and the defendants/respondents have faiied to prove the
same - Evidence Act, 1872 - s.57 - Judicial notice.
Code of Civil Procedure, 1908:.
0. 18, r. 16. - Power to examine witness immediately -
B
Held: Mere apprehension of death of a witness cannot be a
sufficient cause for immediate examination of a witness -
More so, it is the discretion of court to come to a conclusion
as to whether there is a sufficient cause or not to examine the
. witness immediately - In the instant case, plaintiff was just C
above 70 years of age and hale and hearty and, as such,
there was no occasion for her to file an application under 0.
18, r. 16 CPC for recording statement prior to commencement
of trial.
D
Evidence Act, 1872:
s.134 read with ss.138 and 146 - Number of witnesses
and cross-examination - It is not the number of witnesses but
quality of their evidence which is important - If a party wishes
to raise any doubt as regards correctness of statement of a E
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 - Without this, it is not possible
to impeach his credibility.
The appellant's husband, being the descendant of
Shri Sant Eknath Maharaj, was vested with exclusive right
F
to carry the Palki and Padukas of Sant Maharaj from
Paithan to Pandharpur, at -the time of Ashadi Akadashi;
and after her husband's death, the appellant was vested G
with the said right. (The brother of appellant's husband
had predeceased him.) On 11.5.1971 the appellant
adopted 'R', the son of 'VBP'. On the same day the
adoption deed was executed and registered. The
appellant and her sister-in-law (the wife of the deceased H
634
SUPREME COURT REPORTS
[2013] 1 S.C.R.
A brother of appellant's husband) filed a suit against the
respondents seeking a decree of perpetual injunction
preventing them from causing any obstruction or
interf'erence in exercise of their exclusive rights to
carrying the Palki and Padukas. The trial court decreed
B the suit, inter a/ia, holding that the adoption was valid. The
appellant died during the trial and the adopted child
inherited all her property. However, the first appellate
court held that the respondents had proved that there
existed a custom which prohibited the taking of a male
C child in adoption from outside. The adoption deed was
also held to be suspicious. The second appeal of the
appellants, having been dismissed by the High Court, led
them to file an appeal.
D
Allowing the appeal, the Court
HELD: 1.1. 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
E personal law, but it does not override statutory law, unless
the custom is expressly saved by it. He who relies upon
custom varying general law, must plead and prove it. A
custom must be established by clear and unambiguous
evidence, unless it has been judicially recognised by the
F
courts and proof of it becomes unnecessary u/s 57(1) of
the Evidence Act, 1872. [para 7 and 9] [646-A-B, F]
Dr. Surajmani Stella Kujur v. Durga Charan Hansdah
2001 (1) SCR 1028 =AIR 2001 SC 938; Sa/ekh Chand
(Dead) thr. Lrs. v. Satya Gupta & Ors. 2008 (3) SCR 833 =
G (2008) 13 SCC 119; Bhimashya & Ors. v. Smt. Janabi @
Janawwa, 2006 (10) Suppl. SCR 628 = (2006) 13 SCC 627;
Ram Kanya Bai & Anr. v. Jagdish & Ors. 2011 (7) SCR 817
= AIR 2011 SC 3258; Effuah Amissah v. Effuah Krabah, AIR
1936 P.C. 147; T. Saraswati Ammal v. Jagadambal & Anr.
H 1953 SCR 939 = AIR 1953 SC 201; Ujagar Singh v. Mst. Jeo,
LAXMIBAI (DEAD) THR. LRS. v. BHAGWANTBUVA 635
(DEAD) THR. LRS.
1959 Suppl. SCR 781 =AIR 1959 SC 1041; and Siromani A
v. Hemkumar & Ors., 1968 SCR 639 =AIR 1968 SC 1299 -
referred to
. Rama/akshmi
Ammal
v.
Sivanatha
Perumal
Sethuraya, 14 Moo. Ind. App. 570, referred to
8
1.2. In the instant 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, this itself would not be sufficient to establish
the existence of a custom in this regard. There is nothing C
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. Special
customs; which p·re.vail in a family, a particular
community etc., require strict proof. The respondents/ D
defendants could not establish that a male child from
outside the family could not be adopted. The appellate
courts have failed to appreciate that a negative fact
cannot be proved by adducing positive evidence. [para
15] [649-F-G; 650-B-D]
E
Gherula/ Parakh v. Mahadeodas Maiya, 1959 Suppl.
SCR 406 = AIR 1959 SC 781; and V. T.S. Chandrashekhara
Mudaliar (Dead thr. Lrs.) & Ors. v. Kulandaive/u Mudaliar,
1963 SCR 440 =AIR 1963 SC 185- referred to
2.1. In ~he event that there is a registered adoption
deed, there is a presumption of validity with respect to the·
said adoption. Therefore, there is a presumption u/s 16
F
of the Hindu Adoptions and Maintenance Act, 1956 (the
Act) to the effect that the adoption has been made in G
compliance with the provisions of the Act 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 H
636
SUPREME COURT REPORTS
(2013] 1 S.C.R.
A case, the defendants/respondents never made any
attempt whatsoever, to rebut the presumption u/s 16 of
the Act. [para 15] [650-F-H; 651-A-8]
2.2. Undoubtedly, the court while construing a
8
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. In the instant
case, the adoption deed was registered on 11.5.1971, and
the same provided complete details of the adoption.
Registration of the adoption deed was done on the same
C day, immediately after its execution, before the Registrar.
The adoptive mother put her thumb impression on the
deed, and it was also signed by the natural parents of the
child. Additionally, the deed was signed by 7 witnesses,
and all the parties have been identified. There is ample
D evidence on record to prove the occurrence of the giving
and taking ceremony, including photographs of the 'Datta
Homam' ceremony taken by PW-2 on 11.5.1971. The
appellate courts could not have drawn any adverse
inference against the appellants/plaintiffs on the basis of
E 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. The correctness or
authenticity of the adoption deed is not disputed. In such
a fact-situation, by gathering the intention of the parties
F and by reading the document as a whole and considering
its purport, it can be concluded that the adoption stood
the test of law. This Court, therefore, holds that the
document was valid, and that the same could not have
been discarded by the appellate courts. [para 16,25,28, 32
G and 40] [655-8; 656-E-F; 659-E-F; 664-8-C]
H
Delta International Limited v. Shyam Sundar Ganeriwal/a
& Anr 1999 (2) SCR 541 = AIR 1999 SC 2607; Vodafone
International Holdings B. V v. Union of India & Anr. 2012 (1)
SCR 573 = (2012) 6 SCC 613; S. T. Krishnappa v.
LAXMIBAI (DEAD) THR. LRS. v. BHAGWANTBUVA 637
(DEAD) THR. LRS.
Shivakumar& Ors., 2007 (5) SCR 8$0=(2007)10 SCC 761;
A
Debi Prasad (dead) by L.Rs. v. Smt. Tribeni Devi, AIR 1970
SC 1286,; Mst. Deu & Ors. v. Laxmi Narayan & Ors., 1971
(1) SCR 101 = (1998) 8 SCC 701; Kumar Harish Chandra
·Singh Deo & Anr. v. Bansidhar Mohanty & Ors., 1966 SCR
153 = AIR 1965 SC 1738; At/uri Brahmanandam (D), Thr.
B
LRs. v. Anne Sai Bapuji, 2010 (14) SCR 339 = AIR 2011 SC
545; Smt. Rajbir Kaur & Anr. v. Mis. S. Chokosiri & Co., 1988
(2) Suppl. SCR 310 = AIR 1988 SC 1845, Sarju Pershad
Ramdeo Sahu- v. Jwaleshwari Pratap Narayan Singh & Ors.
1950 SCR 781 =AIR 1951 SC 120 ·referred to
c
2.4. Mere apprehension of the death of' a witness
cannot be a sufficient cause for immediate examination
of a witness. More so, it is the discretion of the court to
come to a conclusion as to whether there exists a
sufficient cause or not, to examine the witness D
immediately. The appellant was just over 70 years of age
and was hale and hearty. Thus, there was no occasion
for her to file an application under 0. 18, r. 16 CPC which
provides for the taking of evidence De Bene Esse .. for
recording a statement prior to the commencement of the
E
trial. Though the plaintiff had died before the trial
commenced, the other witnesses who entered the
witness box proved the adoption ceremony and adoption
deed. It Is not the number of witnesses but their quality
which Is Important. The test Is whether the evidence has
F
a ring of truth, Is cogent, credible and trustworthy or
otherwise. It Is quality and not quantity, which determines
the adequacy of evidence as has been provided by s.134
of the Evidence Act. [para 28-30 and 32) [658-B-D; 657D·f·H]
G
·
Vadive/u Thevar v. State of Madras 1957 SCR 981 =
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
2003 (4) Suppl. SCR 767 = 2004 SC 552; Namdeo v. State
H
638
SUPREME COURT REPORTS
[2013] 1 S.C.R.
A of Maharashtra AIR 2007 SC (Supp) 100; Kunju @
Balachandran v.
State of Tamil Nadu, 2008 (1)
SCR 781 =AIR 2008 SC 1381; Bipin Kumar Monda/ v. State
of West Bengal 2010 (8) SCR 1036 =AIR 2010 SC 3638;
Mahesh & Anr. v. State of Madhya Pradesh 2011 (11 ).
B
SCR377 = (2011) 9 SCC 626; Kishan Chand v. State of
Haryana JT 2013( 1) SC 222 - referred to
2.5. Furthermore, if a party wishes to raise any doubt
as regards the correctness of the statement of a witness,
C 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. [ss.138 and 146 of the Evidence Act, 1872.]
[para 31] [658-G-H]
D
Khem Chand v. State of Himachal Pradesh, AIR 1994
SC 226; State of U.P. v. Nahar Singh (dead) & Ors., 1998
(1) SCR 948 =AIR 1998 SC 1328; Rajinder Pershad (Dead)
by L.Rs. v. Darshana Devi (Smt.), 2001 (1) Suppl.
E
SCR 442 = AIR 2001 SC 3207; and Sunil Kumar & Anr. v.
State of Rajasthan, 2005 (1) SCR 612 =AIR 2005 SC 1096
- referred to
2.6. The cause of justice would be served, instead of
being thwarted, where there has been substantial
F compliance with the legal requirements, specified in s.16
of the Act. When substantial justice and technical
considerations are pitted against each other, the cause
of substantial justice deserves to be preferred and the
courts may, in the larger interests of the administration
G of justice, excuse or overlook a mere irregularity or a
trivial breach of law for doing real and substantial justice
to the parties and pass orders which will serve the
interest of justice best. The appellate court has erred by
considering irrelevant material, while the most relevant
H evidence, i.e., the adoption ceremony and the adoption
LAXMIBAI (DEAD) THR. LRS. v. BHAGWANTBUVA 639
(DEAD) THR. LRS.
deed, have been disregarded on the basis of mere A
, surmises and conjectures. The judgments of the
appellate courts are set aside and judgment of the trial
court is restored. [para 40] [664-A-B-C-F]
Jagdish
Singh
v.
Madhuri
Devi,
2008
(6) 8
SCR 1176 =AIR 2008 SC 2296; Dharamvir v. Amar Singh,
1996 (2) SCR 156 =AIR 1996 SC 2314; Santosh Hazari v.
Purushottam Tiwai (Dead) by Lrs. 2001 (1) SCR 948 = AIR
2001 SC 965; G. Amalorpavam & Ors. v. R. C. Diocese of
Madurai & Ors. 2006 (2) SCR 899 = (2006) 3 SCC 224; C
Santosh Hazari v.
Purushottam Tiwari, 2001
(1)
SCR 948 = (2001) 3 SCC 179; Union of India & Anr. v.
Ranchod & Ors., 2007 (12 ) SCR 873 = AIR 2008 SC 938;
Ashish Batham v. State of Madhya Pradesh, 2002 (2) Suppl.
SCR 146 = AIR 2002 SC 3206; and Rathinam alias
Rathinam v. State of Tamil Nadu & Anr. 201 O (11) SCR 871
D
= (2011) 11 sec 140 - referred to.
Case Law Reference
2001 (1) SCR 1028
2008 (3) SCR 833
AIR 1936 P.C. 147
1953 SCR 939
1959 Suppl. SCR 781
1968 SCR 639
14 Moo. Ind. App. 570
refe.rred to
referred to
referred to
referred to
referred to
referred to
referred to
2006 (10) Suppl. SCR 628 referred to
2011 (7) SCR 817
referred to ·
1959 Suppl. SCR 406
1963 SCR 440
referred to
referred to
para 8
para 8
para 9
·para 9
para 9
para 9
para 10
E
F
para 12
G
para 12
para 13
para 13
H
640
SUPREME COURT REPORTS
[2013] 1 S.C.R.
A
1966 SCR 153
referred to
para 17
1999 (2) SCR 541
referred to
para 19
2012 (1) SCR 573
referred to
para 20
B
2007 (5) SCR890
referred to
para 21
1971 (1) SCR 101
referred to
para 22
2010 (14) SCR 339
referred to
para 24
1957 SCR 981
referred to
para 30
c
1994 AIR 1251
referred to
para 30
2003 (4) Suppl. SCR 767 referred to
para 30
AIR 2007 SC (Supp) 100 referred to
para 30
D
2008 (1) SCR 781
referred to
para 30
2010 (8) SCR 1036
referred to
para 30
2011 (11) SCR 377
referred to
para 30
E
JT 2013( 1) SC 222
referred to
para 30
1994 AIR 226
referred to
para 31
1998 (1) SCR 948
referred to
para 31
F
2001 (1) Suppl. SCR442 referred to
para 31
~005 (1) SCR 612
referred to
para 31
1988 (2) Suppl. SCR 310 referred to
para 34
1950 SCR 781
referred to
para 34
G
2008 (6 ) SCR 1176
referred to
para 35
1996 (2) SC~ 156
referred to
para 35
2001 (1) SCR 948
referred to
para 35
H
2006 (2 ) SCR 899
referred to
para 35
LAXMIBAI (DEAD) THR. LRS. v. BHAGWANTBUVA 641
(DEAD) THR. LRS.
2001 (1) SCR 948
2007 (12) SCR 873
referred to
referred to
para 36
para 36
para 39
A
2002 (2) Suppl. SCR 146 referred to
2010 (11) SCR 871
referred to
para 39
B
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
2058 of 2003.
From the Judgment & Order dated 09.02.2001 of the High
Court of Bombay at Aurangabad in Second Appeal No. 906 C
of 1980.
Aarohi Bhalla, Subodh S. Patil, Sujata Kurdukar for the
Appellant.
Aniruddha P. Mayee, Devan sh A. Mohta, Shishir D
Deshpande, Amit Yadav, Kaushal Naryan Mishra, Yash Pal
Dhingra for the Respondent.
The Judgment of the Court was delivered by .
DR. B.S. CHAUHAN, J. 1. This appeal has been preferred E
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 F
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:
G
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, H
642
SUPREME COURT REPORTS
[2013] 1 S.C.R.
A
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.
8
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
C. On 10.5.1971, some of the respondents herein, filed
Civil Suit No. 4 7 of 1971 against Shri Vasant Bhagwant
Pandav, Smt. Laxmibai and Smt. Gopikabai, restraining them
from effectuating the adoption of Raghunath. The
D
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
E
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 occasion. On the same day, an adoption
F
deed was executed and registered in this respect, and the said
deed was duly signed by seven witnesses. Owing to the fact
that the respondents had tried to create some hindrance in the
performance of the duties of the appellants, in relation to
carrying the Palki and Padukas, Smt. Laxmibai and Smt.
G
Gopikabai filed Suit No. 52 of 1971, against the respondents
seeking a decree of perpetual injunction preventing them from
causing any obstruction or interference in the exercise of their
exclusive rights, on 14.6.1971.
H
LAXMIBAI (DEAD) THR. LRS. v. BHAGWANTBUVA 643
(DEAD) THR. LRS. [DR B.S. CHAUHAN, J.]
D. The suit was contested by the respondents and a large A
number of issues were framed. The trial court decreed the suit,
holding that the adoption of Raghunath by Smt. Laxmibai was
valid; that the adoption deed was a legal document which could
in fact, be relied upon; that the ceremony of giving and taking
of the child and that performanc~ of all other religious B
ceremonies was conducted ; and also that photographs taken
at the time of adoption could be relied upon. The said adopted
child Raghunath, inherited all the property of Smt. Laxmibai
when she died before the trial of the suit even commenced. The
inheritance yvas held to be valid, as it was held that there was c
no custom of adopting of a male child only from within the said
family and, consequently, the adoption of Raghunath by Smt.
Laxmibai from outside, was upheld.
E. Aggrieved, the respondents preferred Civil Appeal No.
92 of 1977 and for certain reliefs, the appellants also filed a D
· 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
E
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
F
G
of Hindu Adoptions and Maintenance Act, 1956 (hereinafter
referred to as 'the Act 1956'). Therefore, the appellate courts
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A committed an -error in doubting the validity of the registered
adopti<>n 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
B 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
c 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
0 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 occurance of only four
instances, over a period of almost four centuries, is not
sufficient to establish the existence of a custom. The nonE examination of Smt. Laxmibai during the trial of the suit on
account of her death, prior to the commencement of the trial,
cannot be taken as a circumstance against the appellants. Thus,
the appellate courts have erred in taking such a perverse view.
The photographer present at the adoption ceremony, who was
examined by the appellants before the trial court, was not asked
F any questions in the cross-examination by the respondents, with
respect to any doubts they had regarding the genuineness of
either the negatives, or the photographs of the ceremony. In the
absence of resorting to such a course by the respondents, the
appellate courts could not have drawn any adverse inference
G as regards his deposition, particularly when the photographer
had proved the existence and validity of both the negatives, and
the photographs. Thus, the judgments and decrees of the
appellate courts are liable to be set aside, and the judgment
of the trial court deserves to be restored.
H
LAXMIBAI (DEAD) THR. LRS. v. BHAGWANTBUVA 645
(DEAD) THR. LRS. [DR. B.S. CHAUHAN, J.]
4. Per contra, Shri Aniruddha P. Mayee and Shri Devansh
A
A Mohta, learned counsel appearing for the respondents, have
opposed the appeal, contending that the first appellate court
has the right to re-appreciate all material on record, after which
it has rightly reached a conclusion as regards the suspicious
nature of the adoption deed and adoption ceremonies, and has
B
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 c
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
D
for a long time, has obtained the force of law among
E
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".
F
7. Custom is an established practice at variance with the
G
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.
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A
Custom is a rule, which in a particular family, a particular
B
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
C 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, is required to be construed
strictly. A party relying upon a custom, is obliged to establish it
D
by way of clear and unambiguous evidence. (Vide: Salekh
Chand (Dead) thr. Lrs. v. Satya Gupta & Ors. (2008) 13 SCC
119).
9. A custom must be proved to be ancient, certain and
E
reasonable. The evidence adduced on behalf of the party
concerned must prove the alleged custom and the proof must
not be unsatisfactory and conflicting. A custom cannot be
extended by analogy or logical process and it also cannot be
established by a priori method. Nothing that the Courts can take
judicial notice of needs to be proved. When a custom has been
F
judicially recognised by the Court, it passes into the law of the
land and proof of it becomes unnecessary under Section 57(1)
of the Evidence Act, 1872. Material customs must be proved
properly and satisfactorily, until the time that such custom has,
by way of frequent proof in the Court become so notorious, that
G the Courts take judicial notice of it. (See also: Effuah Amissah
v. Effuah Krabah, AIR 1936 P.C. 147; T Saraswati Ammal v.
Jagadamba/ & Anr., AIR 1953 SC 201; Ujagar Singh v. Mst.
Jeo, AIR 1959 SC 1041; and Siromani v. Hemkumar & Ors.,
AIR 1968 SC 1299).
H
LAXMIBAI (DEAD) THR. LRS. v. BHAGWANTBUVA
647
(DEAD) THR. LRS. [DR. B.S. CHAUHAN, J.]
10. In Ramalakshmi Ammal v. Sivanatha Perumal A
Sethuraya, 14 Moo. Ind. App. 570, 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 B
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.
c
D
All that is necessary to prove is that the usage has
been acted upon in practice for such a Jong period and
with such invariability as to show that it has, by
common consent, been submitted to as the E
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 Court held:
F
"A custom is a particular rule which has existed
either actually or presumptively from time immemorial,
G
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
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[2013] 1 S.C.R.
A
where it is alleged to obtain and the persons whom it is
alleged to affect.
B
c
D
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 practice of gaming
has always been followed by the vicious part of society,
but it is to be hoped for the honour of man that it will never
become a custom."
(See also: Ram Kanya Bai & Anr. v. Jagdish & Ors. AIR
E 2011 SC 3258).
13. Adoption is made to ensure spiritual benefit for a man
after his death. The primary object of adoption was to gratify
ancestors' by means of annual offerings, and therefore it was
considered necessary that the offerer, must as far as possible
F
be a reflection of the real descendant, and must look as much
like a real son as possible, and must certainly not be one, who
could never have been a son. Therefore, the present body of
rules has evolved out of a phrase of Saunaka, which
emphasizes that an adopted male, must be 'the reflection of
G a son'. (Vide: Gherulal Parakh v. Mahadeodas Maiya, AIR 1959
SC 781 ; and V. T. S. Chandrashekhara Mudaliar (Dead thr.
Lrs.) & Ors. v. Kulandaivelu Mudaliar, AIR 1963 SC 185).
14. So far as the present case is concerned, the trial court,
H after appreciating the evidence on record regarding custom,
LAXMIBAI {DEAD} THR. LRS. v. BHAGWANTBUVA 649
{DEAD} THR. LRS. [DR. B.S. CHAUHAN, J.]
came to the conclusion that the evidence led by the
A
defendants/respondents revealed, that over a period of 375
years, there had arisen only 4 occasions, when an adoption
had taken place, and in each of these cases, a male child from
the same family was adopted. It therefore, did not establish the
existence of any custom. Moreover, while serving notice dated
B
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 c
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/
0
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
E
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
F
each time, a male child was taken from within the same family,
the same may merely have been done as a matter of
convenience, a.nd 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
G
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
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[2013) 1 S.C.R.
A
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
B adoption from within the same family on each of the four
occasions over a period of 375 years, would not be sufficient
to establish the existence of a custom in this regard, for the
reason that custom cannot be proved by way of logic or analogy.
Thus we hold, that the finding recorded by the Appellate Courts
c on this issue, is not based on any evidence, and that the
appellate courts have committed an error in holding that the
defendants/respondents have successfully proved the
existence of such special family custom. The appellate courts
have failed to appreciate that a negative fact cannot be proved
0
by adducing positive evidence. This is not a case where there
have been adequate judicial pronouncements on the said issue
previously, of which the court could have taken judicial notice.
Special customs; which prevail in a family, a particular
community etc., require strict proof and the defendants/
E
respondents have failed to prove the sam~.
Section 10 of the Act 1956, provides that a child upto the
age of 15 years can be taken in adoption. Section 11 thereof
prescribes, that in the event that a female adopts a male child,
F
there must be a difference of 21 years between the age of the
female and that of the adoptive child. In the event that there is
a registered adoption deed, there is a presumption of validity
with respect to the said adoption. If these tests are applied, the
following situation emerges:
G
The 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
H been made in compliance with the provisions of the Act, 1956
LAXMIBAI (DEAD) THR. LRS. v. BHAGWANTBUVA
651
(DEAD) THR. LRS. [DR. B.S. CHAUHAN, J.]
until and unless such presumption is disproved. In the event
A
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
B
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 c
have failed to discharge the burden of rebuttal placed upon
them, with respect to the presumption of validity of adoption
under Section 16 o·i the Act 1956.
16. Undoubtedly, the court while construing a document,
is under an obligation to examine the true purport of the
D
document and draw an inference with respect to the actual
intention of the parties. The adoption deed was registered ori
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
E
was related to Smt. Laxmibai. Her husband had expired in 1951
and it had been his desire to adopt a son in ordeJ 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
F
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
G
vedic rites was performed by a pandit, and photographs of the
said occasion were also taken. Registration of the adoption
deed was done on the same day, immediately after its
execution, before the concerned Registrar. The adoptive
mother put her thumb impression on the deed, and it was also
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[2013] 1 S.C.R.
A signed by the natural parents of the child. Additionally, the deed
was signed by 7 witnesses, and all the parties have been
identified. The registered document when read as a whole,
makes it evident that Vasant Bhagwant Pandav and Smt.
Sushilabai, the natural parents of the adoptive child, have
B signed the same as attesting witnesses, and not as executing
parties.
17. It has been laid down that it would defy common sense,
if a party to a deed could also attest the same. Thus, a party to
C an instrument cannot be a valid attesting witness to the said
instrument, for the reason, that such party cannot attest its own
signature. (Vide: Kumar Harish Chandra Singh Deo & Anr.
v. Bansidhar Mohanty & Ors., AIR 1965 SC 1738).
18. A document must be construed, taking into
D consideration the real intention of the parties. The substance,
and not the form of a document, must be seen in order to
determine its real purport.
19. In Delta International Limited v. Shyam Sundar
E Ganeriwalla & Anr., AIR 1999 SC 2607, this Court held that
the intention of the parties is to be gathered from the document
itself. 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
F 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
G
H
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
LAXMIBAI (DEAD) THR. LRS. v. BHAGWANTBUVA 653
(DEAD) THR. LRS. [DR. B.S. CHAUHAN, J.]
a context to which it properly belongs to. While obliging
A
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, isolatedfrom
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
B
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 C
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."
D
(emphasis added)
21. In S. T. Krishnappa v.