# [1975] 3 S.C.R. 32

- **Citation:** [1975] 3 S.C.R. 32
- **Court:** Supreme Court of India
- **Decided:** 1974-12-13
- **Case number:** Civil Appeal No. 1466 of 1970
- **Bench:** K. K. Mathew, P. N. BHAGWATI A:~o N. L. UNTWALIA
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1975-3-s-c-r-32-6719
- **Pages:** 16

## Headnote

Hi11du Adoptions and Mai11te1uincc
Act, (78 of 1956) Ss. 4, 15 and 30Goda Dutta adoption made before commencement of Act-Custom of revocabihy of suclz adoption-ff affected by Act.
Section 4(a) of r:he Hindu Adoptions and Maintenance Act, 1956, provides that
any c.ustom of Hindu law in force immediately before the commencement of the
Act, shall c~.1se to have effect with respect to any matter for which provision is
mad~ in the Act. Section 15 provides that no adoption which has been validly
made can be cancelled by the adoptive father or mother nor can the adopt1~d
person renounce st1ch status; and s. 30 provides that nothing contained in the
Ac:t shall affect any adoption made before its commencement, and, the Vhli!Jity
and effect of anv such adoption shall be determined as if the Act had not\:; .~n
pas>ed.
The appellant claimed that he was adopted by the respondent in 1956, before
the Act c"me into force, in the 'Goda Datta' form.
The respondent filed a suit
for a declaration that the appellant was not so adopted, and while the suit wa~
pending, she made a written declaration stating, (a) that the adoption had nevei
taken place. and (b) that even if it was be\ie;ed that it had taken place it stood
revoked b': that document. The trial court decreed the suit and the High CoQrl
confirmed· the decree.
(Per Bhagwati and Untwalia, JJ.)
Dismi•.>ing the appeal to this Court.
HELD : An adoption in the 'goda datta' form mad~ before the commencem~nt of the Act, can be cancelled after the coming into force of that Act.
(Per Bhagwati, J.),
(a) Section 15 has no appli:ation to adoption made prior to the corning
into the force of the Act. The first pa;t of s. 30 enacts the main saving provision.
The second part is merely a provision introduced rx abundant: cautela with
a view to emphasizing that the v<1lidity and e.ffect c,f the adoption made before
the comm~ncement of the Act sha 11 remain untouched by the provisions of the
Act. It is clear from the plain and unambiguous language of the first part ot
the section. that the legislature intended to excl> 'e the applicability of all provisions conlained in ;he Act to an adopcion made uefore the 0:ommencement of 1the
Act and not merely the applicability of those provisions which affect the validity
and effect of such adoption. The true meaning and effect of the first part of 1tbe
section uninhibited by the provisions in the second part, is that nothing contained
;n the Act shall affect any adoption made prior to the commencement of the Act.
·The word 'affect' is a word of wide import and in the context in which it occ.urs
it must be construed to mean 'touch' of 'relate to' or 'concern'. Therefore, noth·
ing contained in the Act shall touch or apply to an adoption made prior to the
commencement' of the Act. So construed, what s. 30 enacts is that nothing C-Ontained in the Act--and that includes s. 15-shall touch or concern, or in other
words apply to an adoption made prior to the Act.
[37C-38D; 39Cj
(b) The intend'ment and effect of s. 4(a) of the Act is to abrogate the existing
law or custom in .so far as it is replaced by the law enacted in the statute. If
there is a provision made in the stat11te which operates in the same area as the
existing law or custom, the statutory provision mmt prevail and the existing law of
custom must give way. If s. 15 were applicable to an adoption made prior to
the Act it would govern the matter of cancellation; but the section applies only to
an adortion made' after the commencement of the Act, and therefore, so far as
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DANIRAIJI v. VAHUJI (Mathew, J.)
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the matter relatir1g to cancellation of an adoption made before the act is concerned, an; existing law or custom making provision in that behalf cannot be said
to have been :.,brogated by reason of s. 4(a). Hence, if an adoption could b;
cancelled by the adopter prior to the commencement of the Act, the right of the
adopter to cancel it is not taken away. Such a custom enabl;ng canc

## Text

_Characters 0–39,993 of 53,516. This is a partial read: ask again with offset=39993 for what follows._

DANIRAIJI VRAJLALJI, JUNAGADH
\'.
V AHUJI MAHARAJ SHRI CHANDRAPRABHA WIDOW
DECEASED MAHARAJ SHRI PURUSHOTTAMLALJI
RAGHUNATHLALJI JUNAGADH
December 13, 1974
OF
[K. K. MATHEW, P. N. BHAGWATI A:~o N. L. UNTWALIA, JJ.]
Hi11du Adoptions and Mai11te1uincc
Act, (78 of 1956) Ss. 4, 15 and 30Goda Dutta adoption made before commencement of Act-Custom of revocabihy of suclz adoption-ff affected by Act.
Section 4(a) of r:he Hindu Adoptions and Maintenance Act, 1956, provides that
any c.ustom of Hindu law in force immediately before the commencement of the
Act, shall c~.1se to have effect with respect to any matter for which provision is
mad~ in the Act. Section 15 provides that no adoption which has been validly
made can be cancelled by the adoptive father or mother nor can the adopt1~d
person renounce st1ch status; and s. 30 provides that nothing contained in the
Ac:t shall affect any adoption made before its commencement, and, the Vhli!Jity
and effect of anv such adoption shall be determined as if the Act had not\:; .~n
pas>ed.
The appellant claimed that he was adopted by the respondent in 1956, before
the Act c"me into force, in the 'Goda Datta' form.
The respondent filed a suit
for a declaration that the appellant was not so adopted, and while the suit wa~
pending, she made a written declaration stating, (a) that the adoption had nevei
taken place. and (b) that even if it was be\ie;ed that it had taken place it stood
revoked b': that document. The trial court decreed the suit and the High CoQrl
confirmed· the decree.
(Per Bhagwati and Untwalia, JJ.)
Dismi•.>ing the appeal to this Court.
HELD : An adoption in the 'goda datta' form mad~ before the commencem~nt of the Act, can be cancelled after the coming into force of that Act.
(Per Bhagwati, J.),
(a) Section 15 has no appli:ation to adoption made prior to the corning
into the force of the Act. The first pa;t of s. 30 enacts the main saving provision.
The second part is merely a provision introduced rx abundant: cautela with
a view to emphasizing that the v<1lidity and e.ffect c,f the adoption made before
the comm~ncement of the Act sha 11 remain untouched by the provisions of the
Act. It is clear from the plain and unambiguous language of the first part ot
the section. that the legislature intended to excl> 'e the applicability of all provisions conlained in ;he Act to an adopcion made uefore the 0:ommencement of 1the
Act and not merely the applicability of those provisions which affect the validity
and effect of such adoption. The true meaning and effect of the first part of 1tbe
section uninhibited by the provisions in the second part, is that nothing contained
;n the Act shall affect any adoption made prior to the commencement of the Act.
·The word 'affect' is a word of wide import and in the context in which it occ.urs
it must be construed to mean 'touch' of 'relate to' or 'concern'. Therefore, noth·
ing contained in the Act shall touch or apply to an adoption made prior to the
commencement' of the Act. So construed, what s. 30 enacts is that nothing C-Ontained in the Act--and that includes s. 15-shall touch or concern, or in other
words apply to an adoption made prior to the Act.
[37C-38D; 39Cj
(b) The intend'ment and effect of s. 4(a) of the Act is to abrogate the existing
law or custom in .so far as it is replaced by the law enacted in the statute. If
there is a provision made in the stat11te which operates in the same area as the
existing law or custom, the statutory provision mmt prevail and the existing law of
custom must give way. If s. 15 were applicable to an adoption made prior to
the Act it would govern the matter of cancellation; but the section applies only to
an adortion made' after the commencement of the Act, and therefore, so far as
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DANIRAIJI v. VAHUJI (Mathew, J.)
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the matter relatir1g to cancellation of an adoption made before the act is concerned, an; existing law or custom making provision in that behalf cannot be said
to have been :.,brogated by reason of s. 4(a). Hence, if an adoption could b;
cancelled by the adopter prior to the commencement of the Act, the right of the
adopter to cancel it is not taken away. Such a custom enabl;ng cancellation would
continue in force and govern the matter of cancellation of an adoption made b~
fore the commencement of the Act.
[39E-H]
( c) Prior to the commencement of the Act, by custom, a goda datta adoption
could be cancelled by the adopter. The Act, in Ss. 5 to 11, has laid down the
conditions and requirements for making an ~doption. Therefore, the custom of
goda datta adoption ceases to be in force o.n the commencement of the Act by
virtue of s. 4(a); that is, no such adoption could be made after the commencement of the Act according to custom, and consequently, no question of its cancellatign could arise.
But, where the adoption was made before the Act, the
custom gave a right to the adopter to cancel the adoption and this cu;tom, in
so far as it operated on the adoption made prior to the Act, did not cease to be
in force under s. 4(a), as s. 15 is not applicable to such an adoption. [40 A-CJ
(d) It is true that the custom of goda datta adoption has two limbs-one relating to· the making of adoption and the other providing for its revocability at
the option of the adopter. Therefore, since the custom of such an adoption has
ceased to be forced on the commencement of the Act, as regards adoption made
subsequent to the Act, the second limb also came to an end, because, if no such
adoption could be made after the commencement of the Act there could be no
question of its cancellation; but, where under the first limb the adoption was already made befo.re the commencement of the Act, the second limb would not have
to depend for iis survival on the continuance of the first. In such a case, the
second limb of the custom _could operate, and in relation to such an adoption, the
secoad limb would be the law in force. Therefore, the second limb of the custom
relating to revocability continued in force in its application to such an adoption.
[40C·H]
(Per Untwalia, J.)
(I) There is no substance in the contention that revocation could be made
only on some reasonable grounds and the custom required it to be so. No reason
was necessary to be stated or proved to sustain the revocation.
[43G-H]
(2) In the deed of cancellation the respondent had stated that if it was b~
lieved that the respondent had taken the appellant in adoption, then she was can·
ceiling and annulling it. It could not, therefore, be said that th: document does
not legally revoke the adoption.
[43A; 44A-B]
(3) (a) Section 30 is a saving clause in the Act and according to it the pro·
'1isions of the Act are not to affect any adoption made before its commencement,
that is to say, the v?.liditv of the adoption made before the commencement of the
Act as also its effect will have to be examined and determined with reference to
the law or the custom as it stood prior to the coming into force of the Act and
not in accordance with it. The expression "affect any adoption" necessarily mean;
affect inadoption as to its "validity and effect". Neither of the expression takes
within its sweep any ol the other incidents· or characteristics of the law or th,
custom of adoption under which it was made. Therefore, the incident or characteristic of this custom which entitled either party to revoke the arloo•ion was not
a matter concerning the validity and effect of adoption, and the High Court was
not right in holding that the right of revocation is one of the effects ot goda datta
adoption and is saved by s. 30.
[44D·HJ
(b) Section 4 is clearly prospective and not retrospective. No adoption could
be made in the goda datta form after the coming into force of the Act and hence
there wonld be no question of its re-vocation. If s .15 prohibits cancellation o~ a~
adoption validly made even prior to the commencement of the Act then it l'
manifest that s. 4 finishes the custom o( cancellation after the commencement of
the Act, bv a prospective operation and not by ·any retroactive action. The qucs·
tion, therefore, would be whether cancellation of th~ adoption of the app.:llant
was in contravention of s. 15 of the Act. If it was so, the cancellation was in·
valid and could not be s~vcd by s. 30.
[46D-<J]
4~C.379Sup C:/75
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[1975] 3 S.C.R.
(c) Section 15, however, applies only to an adoption which has been validly
dnade in accorda
1nce with the. provisions of the Act and after its commenc<,ment.
In its context anti set up,., its applicability cannot be enlarged and the section can-
.not be permitted to embrace any adoption which has been validly made before
the commencement of the Act. The legislature dia not intend to change the in-
·ci<lent or characteristic of a goda datta adoption, which made the position of the
adopted person in that form, nothing higher than that of a dignified employee
·engaged to perform rite.s and enjoy the priyileges for the time he continued° to be
such a son.
Or it may be that the legislature inadvertently left the custom of
revocability of goda datta adoption untouched by s. 15. In either view of the
matter cancellation, of the adoption of the appellant made by the respondent, by
the registered do•:ument, is in accordance with the custom of goda datta an_d hence,
there is no violation or the law contained in s. 15. [47 C-G]
Per Mathew, J; (dissenting) (1) The custom of goda datta adoption ha:; been
abrogated by s. 4 ( 1) read with s. 5 of the Act and s. 30 saves only the effect
and validity of an adoption made before the Act. But it is difficult to think how
a custom revoking such an adoption could continue in force after the custom of
making the adoption in that form has been abrogat~d by the Act, becam.e, the
<:ontinuance of the custom of cancellation was dependent upon the con1inuance
-0f the custom of making the adoption.
(358-D]
(2) The Act provides only for the method and form of adoption after th~
·coming into force of the Act and it has made no provision for cancellation of an
.adoption except in s. 15. Assuming that s .. 15 relates only to an adoption maJ~
after the commenceJDent of the Act, unless the right to cancel the adoption under
the custom become an accrued right before the commencement of the Act, th~
·custom of cancelling an adoption would not continue. Therefore, if the adoptor
wants to cancel such an adoption after the commencement of the Act he c:an do
·so only by estal)lishing that he had an accrued right on the date of adoption or,
at any rate, before the abrogation of the custom to cancel it, in which case, the
~ustom to cancel the adoption would be deemed to continue for cancelling it,
notwithstanding the fact that, as custom, it has ceased to operate after the' commencement of the Act. The effect of the abrogation of the ·custom can be equated in principle to the repeal of a law.
[35E-H]
(3) That apart, the legislature has saved by s. 30 only an adoption made before the Act, it• validity and effect. When the legislature has chosen to make a
specific provision to save only the validity and the effect of adoptions already
made, (which would have been saved even without such a provision under the
,general principle of law notwithstanding the abrogation of the custom) the inierence is that the legislature did. not want to save the right to cancel the adoption. The express saving in s. 30 of only the validity and effect of adoption can
only lead to the conclusion that the legislature did not want to save the incident
·Of revocability attached to it
by
custom. Expressio
facit
cessare tacitum.
[:16C-Fl
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1466 of 1970.
Appeal from the judgment and decree dated the 16th April 1970 of
the Gujarat High Court in Appeal No. 744 of 1961.
V. S. Desai, R. M. Hazarnavis, .R. N. Dhebar, K. L. Hath/ and.
J. R. Nanavati, for the appellant.
S. T. Desai, D. D. Vyas and /, N. Shroff, for the respondent.
The majority view was expressed by P. N. Bhagwati, J. and N. L.
Untwalia, J. in separate judgments. K K Mathew, J. delivered :1 dissenting opinion.
MATHEW, J.-The question is, whether an adoption made in "Goda
Datta" form, a customary mode of adoption, before the passing of the ·
Hindu Adoptions •and Maintenance Act, 1956 (hereinafter called the
'Act'), could be cancelled or revoked after its commencement.
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DANIRA!JI v. VAHUJI (Mathew, 1.)
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The relevant provisions of the Act have been considered in the
judgment of my learned brother Untwalia, J. and he has come to tke
conclusior. that the;:. custom of Goda Datta adopti9n has been abrogated
by s. 4 ( l) read with s. 5 of the Act, •and that s. 30 saves oqly the
validity and effect of adoption m~de before the Act. I agree with these
conclusions. I will also assume that s. 15 deals only with canr.ellation
of adoption made after the Act. Even so, I cannot agree with his ultimate conclusion th•at the adoption made in the instant· case could be
·Cancelled after the Act came into force.
Since the custom of adoption in Goda Datta form has been abrogated by virtue of s. 4(1) read with s. 5 of the Act, I do not think
that the custom to cancel or revoke an adoption in that form could
continue after the. commencement of the Act. It is difficult to think
how •a custom of revoking an adoption in Goda Datta form could continue in force after the custom of making adoption in that form has
been abrogated by the Act. The continuance of the custom of cancellation of Goda Datta adoption was dependent upon the continuance of
the custom of making adoption in that form.
With the abrogation of
the custom of adoptiori in that form by s. 4 (1) read with s. 5 0f the
Act, the custom of cancellation also stood abr\)gated. I cannot understand how one limb of that custom could survive the destruction of the
other as both the customs were inseparably intertwined.
The Act provides only for the method and form of adoption after
the coming into force of the Act. It has made no provision for cancellation of adoption except in s. 15 which, I will assume, relates only
to adoptiqn made after the commencement of the Act Yet, I do not
think that the custom uf cancellation of adoption in Goda Datta form
could continue after the custom of making adoption in that form has
ceased to operate after the commencement of the Act. In other words,
although there is no separate provision in the Act for cancellir;g an
adoption made before the commencement of the Act, it is difficult to
imagine how any legislature could provide for the continuance of the
custom of cancellation, which is an incident of the custom of adoption in that form, without continuing in force the custom of adoption
in th-at form.
What then is the effect of the abrogation of the custom of cancelling adoption in Goda Datta form along with the custom of adoption in
that form ? I should have thought the question could admit of only
one answer and that is that the adoption cannot be cancelled after the
commencement of the Act, unless the right to cancel the adoption
under the custom became an accrued right before the commencement
of the Act. Therefore, if the adopter wanted to cancel an ad_option in
Goda Datta form after the commencement of the Act, he could do so
only by establishing that he had an accrued right on the date of the
adoption or, at any rate, before the abrogation of the custom, to cancel it, in which case, the custom to cancel the . adoption would be
deemed to continue for oancelling it, notwithstanding the fact that, as
custom, it has ceased to operate after the commencement of the Act.
In principle, the effect of abrogation of the custom of cancelling . an
adoption is much the same as the repeal of a law. The past operation
36
SUPREME COURT REPORTS
[1975] 3 s.c.R.
of the custom would be wiped out except as to rights accrued. A right
tb take •advantage of the custom of cancelling an adoption, like the
right to take advantage of a provision of law providing for cancelling an
adoption, is not al\ act:rued right. "There is no .. presumption that an
Act is not intended to interfere with existing rights.
Most Acts of
Parliament, in fact, do interfere with existing rights"( 1) In order to
raise the presumption, the right must be an •acquired, accrued or vested
right. Before the Act came into operation and when the custom was
in force, an adoptor could have cancelled the adoption by taking advantage' of the custom and that was certainly a right to take advantage
of the custom. But the question is, when the Act abrogated the custom, whether it was an accrued or acquired right in order to raise the
presumption that the legislature did not intend to interfere with it.
That apart, the legislature was saved by s. 30 only adoption made
before the Act, its validity and effect; the revocability of an adoption
which does not pertain either to its validity or effect has not been
saved.
Even if the legislature had not provided in s. 30 for saving
adoption already made, its validity and effect being accrued rights,
would have been saved under the general principle of law, notwithstanding the abrogation of the custom of adoptiollJ in Goda Datta form
by the Act in the absence of any provision to the contrary in the Act.
But when once the legislature has chosen to make a specific provision
and to save only the validity and effect of adoptions already made, the
inference is that the legislature did not want to save the right to cancel
the adoption. Nothing was more easy for the legislllture, if it wanted
to save any other right attaching to adoption already made, than to say
so expressly as it has done with respect to its validity and effect. The
express saving in s. 30 of only the validity iand effect of adoption can
only lead to the conclusion that the legislature did not want to save the
incident of revocability attaching to it by custom. Expressum f acit cessnrc tacitum.
Seeing that the kgislative policy was to put a stop to
the custom of cancelling adoption, I need have no qualms in presuming
that Parliament did not want to save the right to cancel adoption by
s. 30.
I would allow the appeal without any order as to costs.
BHAGWATI, J. I agree with the conclusion reached by my learned
brother Untwalia, J., but I would prefer to give my own rc~1sons in
support of that conclusion.
The question that arises for determination in the appeal is whether
an adoption in the Goda-datta form made before the passing of the
Hindu Adoption and Maintenance Act, 1956 (hereinafter reforred to
as the Act) can be cancelled after the coming into force of that Act.
What is a Goda-datta form of adoption and what are its incidents has
been discussed in the judgment of my learned brother Untwalia, J.,
and I need not repeat what has been so ably and lucidly explained
there.
Suffice it to state that the Goda-datta form of adoption is a
customary form prevalent in Vallabhkul;
neither dutta-homam nor
actual giving and taking is net:essary for rr.aking such adoption:; it does
(l) see per Buckley L.J. in West 1. Gwyppe. ( 1911) 2 Ch. I at 12.
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DANJRAIJI v. VAHUJI (Bhagwati !.)
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not sever the relationship of the adoptee with his n•atural family and
he continues to be entitled to his rights i'a that family; he can be taken
in this form of adoption in ·more families than one and such adoption
can . be cancelled at any time by the adopter or the adoptee at his
sweet will.
If, therefore, the Act had not come into force, there can
be no doubt that accordh1g to custom the goda-dutta form of adoption
could be cancelled by the adopter at any time he lik.ed.
The question
is : Has the enactment of the Act made any difference ?
Three sectious of the Act are material, namely, Sections 4, 15 and ·
30.
I will first turn to section 15.
That section provides :"No adoption which has been validly made can be c•.tacelled by the adoptive
father or mother, or any other person, nor can the adopted child ren-·
ounce his or her status as such and return to the family of his or her
birth."
My learned brother Untwalia, J., has analysed the scheme of
the Act and shown that section 15 applies d,1ly to an adoption which
has been validly made in accordance with tlle provisions of the Act
after its commencement and it has no application to an adoption made
prior to the coming into force of the Act.
I agree so entirely with
him in this interpretation of section 15 that I do not think it necessary
to iadd anything to what he has said in this connection.
I onJy wish
to point out that section 30, on the construction which I place upon
it, re-inforces this interpretation of section 15.
Section 30 enacts a
saving provision. It says : "Nothing contained in this Act shall affect
any adoption made before the commencement of this Act, and the
validity and effect of any such adoptioh shall be determined -as if this
Act had not been passed.'" My learned brother Untw,alia, J., has taken
the view with which my learned brother Mathew, J., has agreed, that
the second part of this section merely crarifies what is embodied in the
first and the first part does not go beyond saving merely the validity and
effect of an adoptid,1 made before the commencement of the Act.
I
have tried hard but I find it difficult to persuade myself to accept
this interpretation of the section.
I·· do not think it would be right
to read the second part of the section as controlling the first.
It is the
first part of the section which ell'acts the main saving provision and
the second part is merely a provision introduced ex abundantau cite/a,
with a view to emphasising that the validity and effect of an adoption
made before the commencement of the Act shall remain untouched
by the provisio,1s contained in the Act and be determined as if the Act
hiad not been passed. It would not be legitimate to cut dow,1 the
width and amplitude of the first part of the section by reference to the
second part. It is clear from the plain and unambiguous language
of the first part of the section that the legislature intendect·-to exclude
the applicability of all provisions contained i!ll the A_ct to an adopting
made before the commencement of the Act and not merely the applicability of those provisions which affect the validity and effect of such
adoption. If such had been the intention of the legislature, it would
have used appropriate language, such as "nothing contained in this
Act shall affect the validity and effect of any adoption .... ", instead
of enacting a saving provision employing wide and all embracing language not limited merely to validity •and effect.
Therefore, merely because validity a!,1d effect are specifically dealt with in the second part
SUPREME COURT REPORTS
[1975] 3 S.C.R.
of the section it cannot detract from the generality of the saving provision enacted in the first part. The second part of the section has no
restrictive effect on the first part. I must, therefore, proceed to conr
sider the true meaning and effect of the "rst part of the secticin uninhibited by the provision in the second par .. The first part of the section
says that nothing contained in the Act-and that would include section 15-shall affect any adoption made prior to the commencement
of the Act.
But what is the meaning and connotation of the word
"affect'.
When section 15 provides that an adoption once m~de shall
not be cancelled, does it 'affect' an adoption already made which is
subject to the incident of revocability ? Now, even if the word 'affect'
were to be interpreted to mean alter or 'influence' or 'have impact on'.
there can be no doubt that section 15 would 'affect' such adoption
because it would destroy one ilacident of such adoption, namely, its
revocability.
But I do not think that in the context in which the
word 'affect' -i~ used, it means 'alter' or 'influence' or 'have impact on'
The word 'affect' is a word of wide import and in the context in which
it occurs it must be construed to ·mean "touch" or "relate
to" or
"concern."
The legislative intent, as manifest in the first part of the
section, clearly is that nothing contained in the Act shall tou_ch or
apply to an adoption made prior to the commencement of the Act.
I am fortified in giving this meaning to the w.ord 'affect' by the decision
of the High Court of Australia in Shanks v. Shanks. (1) There
the
question was whether a decree dismissing a petition for diss.olution of
a marriage could be said to be judgment which
'affects' the status
of any p1erson under the laws rdating to marriage or divorce within
the meaning of section 35(1) (a) (3) of the Judiciary Act, 1903. The
argument was that a decree grahting dissolution of marriage would
be a judgment effecting the status of the parties to the marriage, but
a decree dismissing a petition for dissolution of marriage would not
be, as it would leave the status of the parties untouched.
This argument ~as rejected by the High Court of Australia.
Mr. Justice Mc-
~rman gave the following meaning of the word 'affects' as used in
section 35(1) (a)(3) :
"If the word "affects" in sec. 35 means, as the respondents contend, alters, the appeal against the decree dismissing the appellant's petition would not lie as of right, because
it is clear that the decree does laot !liter the
appelllunt's
status : See Needham v. Bremner."(2) ...... In its ordinary usage "affects" is a synonym for touching, or relating to,
or concerning. In my opinicm the word has that meaning in
the ccl.ltext of sec. 35. - This section should be construed
as conferring the most ample jurisdiction that the fair meaning of the words will allow.
In a suit for divorce the status
of the parties is involved and the decree, whether it allows
or refuses the petition, touches the status of the parties.
In
the case of C. v. M. (3) it was said in terms that the decree
the
subject
of
that
appeal
involved a
questfon
of
( 1) 65 C.L.R 3~4.
(2) ('!866) L.R. 1 C.P. 583, at P. 585.
(3) (1885) 10 Sup. Cal. 171 at p. 177.
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DANIRAIJI V. VAHUJI (Bhagwoti /,)
the appellant's status. If the word "affects" is read as meaning refating to or touching, then sec. 35 gives a right of appeal
both from a decree of divorce and a decree refusing a divorce.
In Bleeze v. Fopp( 1) the judgment of the Supreme Court
was in effect that the respondent should not be. made bankrupt.
Griffith CJ. said : "The Judgment affects the status
of the respondent within sec. 35."
The same mean~ng must be given to the word 'affect' in the
pr~
sent case.
So construed, it is clc•ar that what section 30 enacts is that
nothing contained in the Act-and that includes
section
15-shall
touch or concern or, in other words, apply to an adoption made prior
to the Act.
Section 15, therefore, is confined in its application to an
ad0ption made subsequent to the Act and it does not place an embargo•
on cancellation so far as an adoption prior to the Act is conce.rned.
If, therefore, such an adoption could be cancelled by the adopter prior
to the commencement of the Act, the right of the adopter to cancel it
is nlot taken. away by section 15.
Then, does section 4 have such an effect.
The only relevant part
of section 4 to which I need refer is clause (a) which is in the follow-·
ing terms :
"Save as otherwise expressly provided in this Act,
(a) any text, rule or interpretation -of Hindu law ar any
custom or usage a~ part of that law in force immediately before the commencement of this Act shall
cease to have effect with respect to any matter for ·
which provision is made in this Act."
The intendment and effect of section 4 (a) is to abrogate the existing
Jaw or custom in so far •as it is replaced by the law enacted in the stntute.
if there is a provision made in the statute which operates oa the same·
area as the existing law or custom, the statutory provision must preF
vail and the existing law or custom must give way : it must be taken
to be superseded or, to use the language of section 4 (a), it was to cease
to be in force, because then the matter would be governed by the·
statutory provision and not by the existing law or custom. If, therefore, section 15 were applicable to an adoption made prior to the Act,
. it would govern the 'matter' of cancellation of such adoption and any
existing law or custom providing to the contrary would cease to be in
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force and no longer apply.
But as discussed above, section 15, on its:
proper interpretation, applies only to an ·adoption made after
the
commencement of the Act, •and therefore, so far as the matter relating
to cancellation of an adoption made before the Act is concerned, any
existing law or custom making provision in that behalf cannot be said
to have been abrogated by reason of section 4(a).
Such existing
l~w or custom would continue in force and •apply so as to govern the
H
'matter' of cancellation of adoption made before the commencement
of the Act.
(l) (1911) 13 C.L.R. 324.
40
SUPREME COURT REPORTS
[1975) 3 S.C.R.
That being the true legal position, let us see how it 2pplies in the
present case.
Here there was, prior to the commencement of the Act,
the custom of Goda-datta adoption and
the Goda-datta adoption
could,
according ·to
custom,
be
cancelled
by
the
adop.ter
at any
time
he liked. The custom of Goda-datta adoption
ceased to be in force on the commencement of the Act by virtue of section 4 (a) since provision was rnade in various section of the Act laying
down the conditions and req\ .ements for making an adoption.
Se"
section 5 to 11.
No Goda-datta •adoption could, therefore, be made
' after the commencement of the Ac! according to custom and consequently no .question of its cancellation could arise.
But where a godadatta adoption was made before the Act, the custom gave a right to
tbe adopter to cancel the udoption at his sweet will and this custom,
in so far as it operated on Goda-datta adoption made prior lo the· Act.
did 1,10t cease to be in force under section 4(a) as section 15 did not
make provision in regard to 'matter' of cancellation of such "adoption.
It was, however, contended on behalf of the appellant that the custom
· of Goda-datta adoptim1 bud two limbs, one relating to the making of
the adoption und its effect and the other provid~ag for its revocability
at the option of the adopter or the adoptee and a question was posed :
if the first limb is destroyed, how can the second survive ? Both limbs
of the custom, according to the appellant, must perish as soon as the
custom came to an end on the commencement of the Act. This argument; though apparently attractive; is, in my opinion, not sound and
suffers from the fault of over simplification. It is of course true that
the custom of Goda datta adoption ceased to be in force on the commencement of the Act and, therefore, in so far as it conccrn<>d adoption to be made subsequent to the Act, the second limb of foe custom
came to an end with the first, because if no Goda-datta adoption could
be made
after the
commencement
of
the
Act,
there
couM
be no question of its cancellation. If the first limb of the custom was
gone, there could be no Goda-datta adoption on which the
second
limb could operate. But where under the fi_rst limb of the custom a
Goda-datta •adopticb was already made, the second limb would
not
have to. depend for its survival on the continuance of the first.
There
would in such a case be a Goda-datta adoption on which the
~.econd
limb of the custom could operate and in relation to such Goda-datta
•adoption. the second limb of the custom would be the law in force.
That could not be said to be abrogated by section 4(a), si1,1ce neither
section 15 nor any other section of the Act made any provision in
regard to the 'matter' of cancellation of an adoption made prior to the
Act. The second limb of the custon1 relating to revocability of Goda·
datta adoption, therefore, contilaued in force in its application to Godadat.ta adoption made prior to the Act and the enactment of the Act did
not have the effect of putting an end to it.
The Goda-datta adoption
made before the Act was, therefore. revocable by the adopter at his
sweet will even after the commencement of the Act.
I, therefore, •agree with my learned brother Untwalia, J., that the
appeal should be dismissed with no order as to costs.
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DANJRAIJI v. VAHUJI ( Untwalia, J.)
41
U NTA WALIA, J. In this appeal filed by the defendant · appellant·
on grant of a certificate of fitness by the High Court of Gujarat under
Article 133(1) (c) of the Constitution of India •as it stood before the
Constitution' (Thirtieth Amendment) Act, 1972 one of the important
questions concerns the interpretatio'.1 of Sections 4, 15 and . 30 of
the Hindu Adoptions and Maintenance Act, 1956-hereinafter called
the Act.
The two parties1to the suit giving rise to this appeal are the
descendants of Shri Vallabhacbarya Maharaja, tk ouginal founder
of Suddh Adauit Pushti Marg. He flourished about 500 years
ago.
The family of the descehdants aforesaid is known as
Vallablikul.
Many of such descendants cire working as Acharyas of various temples ,
and shrines in Guj•arat and other places.
They are· generelly known
as Goswamis, Acbaryas or Mabarajas.
Their offices are. known
as
"Gadis".
Maharaj . Purshotamlalji Raghunathlalji
was
the
Maharaj of
Junagadh Haveli of Gujarat. He. died on 11th September, 1955 leaving behind a widow and four daughters. He had no son. The plaintiff
respondent was the widow and she was the only heir of the deceased
Maharaj and was called Vahuji Maharaj Shri Chandraprabha. Accor-.
ding to the case of the respondent she bad engaged Daniraiji Urajfalji
the appellant in this case for doing the puja of the God which he was
performing as the representative of the -r.eij)ondent.
'Tilak' ceremony
was done in order to inform the Vaishnay devotees about the appoiiatment of the appellant for doing puja. Murlidharlalji-tbe older brother
of the •appellant, was pressing the respondent tJ taKc !um in adoption.
But since the appellant was an orphan-his parents being dead earlier
he could not be adopted.
No ceremony of giving and taking had taken
place.
No
other
ceremony
as
required
under
the
Hindu
Law for a valid adoption \J/~as 1Jerformed.
The ic,spondGrt fried the suit
on the 14th of April, 1958 claiming relief of declaratioa that the appellant was not the legally adopted son of deceased Purshotamlalji.
About 3 months after the institution of the suit the respondent made
a written declaration on the 17th of July, 1958 ~tating that the adoption in question had never taken place and that even if, it was believed
that it had taken place it stood revoked.
The declaration aforesaid,
which was registered also with the Registrar of Documents, in Ext. 292
in the case.
The appellant and his qU'ardian were made aware of
this declaration before their written statement was filed on the 15th
August, 1958.
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The appellant's case has been that the respondent adopted him 1\S
. per their family custom on the 18th March, 1956. Such ceremonies
as were required to be performed as per the custom of the family
were gom: through. The customary adoption .in the family is bown
either as "Goda Datta" or "Goda". The appellant had also challenged
in his written statement the respondent's right to
revoke
the said
adoption because according to the family custom, adoption of Goda
H
Datta once made could not be revoked.
·
Although in their statement and in the particulars of the custom
· which were supplied on behalf of the appellant on being asbd to do
42
SUPREME COURT REPORTS
[1975] 3 s.c.R.
so, only one type of customary adoption was indicated, in evidence
attempt was made on his behalf to show that the custom n~cognited
two types of _adoptions-one known as "Goda Datta" and 1the other
as "Samanya Goda".
Voluminous oral and documentary evidence was adduced by the
parties at the trial. The Trial Judge decreed the suit and held as under :
( 1) That the appellant was adopted according to the
custom of the family.
(2) That there was only one type of customary adoption
and the same was known as "Goda Datta" or shortly
as "Goda".
( 3) That adoption of the type of Goda Datta was revoc·
able unilaterally by either of the parties and that SillCh
a revocation was in fact made by the respondent.
The Trial Judge negatived the contention put forward on behalf
of the appellant that the alleged revocation having been brought about
during the pendency of the suit, no relief could be given to the respondent on its basis.
The defendant filed an appeal in the Gujarat High Court. The
plaintiff filed a cross-objection to challenge certain- findings
of
the
Trial Judge -recorded against her specially in regard to the fai:tum of
adoption, But in view of the voluminous and unimpeachable evidence
in the case, the matter was not pursued in the High Court on behalf of
the respondent. Learned counsel for the appellant in the High Court
urged six points in support of the appeal enumerated in the judgment
of the High Court as follows :
( 1) "That the defendant has satisfactorily proved
that
there are two types of customs in the family, namely,
"Goda Datta" and "Samanya Goda" and that the
adoption which is made in accordance with "Goda
Datta" type of customs is irrevocable.
(2) That assuming that there is only orte type of custom
as contended by the plaintiff, the plaintiff has faikd
to prove that the adoption which is made by that
custom is revocable at the instance of either of tlhe
parties.
(3) That looking to the deposition of defandant's witness
Lalan Krishna Shastri, even if it is believed that the
customary adoption in question is revocable, it may
be revoked only on some reasonable grounds and
since the plaintiff in this case has not revoked this
adoption on any reasonable ground, the said revocation is not legally operative.
·
( 4) That at any rate, the declaration found at Exhibit
292 by which the revocation is said to have been
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DANIRAIJI v. VAHUJI (Untwalia, J.)
made, does not legally revoke the adoption in as
much as it does not admit the fact of adoption of the
defendant.
(5) That on proper construction of sections 4 and 15 of
the Hindu adoption and Maintenance Act of 1956,
the custom in question was rto longer in force on the
day of the alleged revocation and, therefore, revocation in accordance with that custom could not have
been legally made by the .plaintiff. According to Mr.
Nanavati, the adoption validly made before the application of the said Act becomes absolute and irrevocable as a reswt of section 15 of the Act.
43
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(6) That the prayer for declaration that the defendant is
not adopted cannot be granted in view of the fact
that the alleged revocation has been made by the
plaintiff only after the institution of the suit."
The High Court has taken pains to discuss and scan the points
urged on behalf of the appellant before it, and answered all of them
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Mr. V. S. Desai appearing on behalf gf the appellant in this Court
finding it difficult to press and -pursue all the points urged in the Bigh
Court gave up points 1 and 2 and faintly pressed point no. 6 but
ultimately gave up that too. He, howe"'.er, urged point nos. 3, 4, and
5 for our acceptance and laid great stress. on the 5th point which is.
a pure question of law and a ticklish one. Mr. S. T. D. Desai, learned
counsel for the respondeJJt submitted that there was no substance in
any of the points urged on behalf of the appellant and the judgment
of the High Court was fit to be upheld in every respect.
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I, th~refore, proceio:d to discuss the three
q\l~stions falling for
determibation in this appeal on the footing that there has been only one
type of custom of adoption in Vallabhkul known as Goda Datta and
the custom recognized _the revocability of such adoption. According
to the said custom the adoption could be revoked and annulled at the
instance of either party, namely, the adaptor.