Full Judgment Text
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CASE NO.:
Special Leave Petition (civil) 1380 of 2002
PETITIONER:
Salekh Chand (Dead) by Lrs
RESPONDENT:
Satya Gupta and Ors
DATE OF JUDGMENT: 04/03/2008
BENCH:
Dr. ARIJIT PASAYAT & P. SATHASIVAM
JUDGMENT:
J U D G M E N T
CIVIL APPEAL NO. OF 2008
(Arising out of SLP (C.) No. 1380 of 2002)
Dr. ARIJIT PASAYAT, J
1. Second appeal filed by the defendants having been allowed
by the learned Single Judge of the Allahabad High Court one of
the plaintiffs Salekh Chand has filed this appeal. The legal
heirs of the another plaintiff Om Prakash who died on
28.2.1998 (proforma respondent No.4) have been impleaded in
this appeal. Om Prakash’s widow Smt. Ram Kumari died
on 2.6.1999 and, therefore, their son Munna Lal is proforma
respondent no.4.
2. Background facts in a nutshell are as follows:
A suit filed by the plaintiffs Om Parkash and present
appellant Salakh Chand was dismissed by learned Additional
Civil Judge, Ghaziabad in Suit No.699/84. Learned Additional
District Judge, Ghaziabad reversed the judgment and decree
dated 5.3.1990 by judgment and decree dated 22.2.1998. The
plaint averments refer to the following facts:
Om Prakash and Salekh Chand filed Suit No.699 of 1984
against Smt. Satya Gupta and one Brijesh Kumar. Shiv Om
Banshal and Mahendra Kumar Banshal (Respondent Nos. 2
and 3 in this appeal) were impleaded as defendant nos.3 and
4. The plaint allegations were that House no.104 (old number)
with its new numbers 175 and 176 described in the plaint
belonged to one Pares Ram who had four sons namely,
Jagannath, Dina Nath, Anand Swaroop and Battu Mal. The
pedigree was as follows:
PEDIGREE
PARES RAM
| | | |
Jagannath Dina Nath Anand Swaroop Battu Mal
| (died issue-less) |
| |
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Chandra Bhan Surendra Kumar
(adopted son) (son)
Smt. Shanti Devi
_________________________________________
Chawali Devi Satya Gupta Brijesh Kuma
r
(widow) (daughter) (adopted son)
defendant no.1 defendant no.2
Dina Nath died issue-less out. During his lifetime he had
sold his 1/4th share to Battu Mal. Surendra Kumar and his
mother (widow of Anand Swaroop) had sold their 1/4th share
to Smt. Satya Gupta by registered sale-deed. Brijesh Kumar
defendant no.2 is the adopted son of Battu Mal. On the death
of Jagannath his son Chandra Bhan succeeded to share of
Jagannath in the suit property. On the death of Chandra
Bhan his widow succeeded to the suit property. She executed
a sale-deed dated 26.7.1979 of her share in the suit property.
Thus the plaintiffs are co-sharers of 1/4th share in the suit
property whereas defendant nos.1 and 2 are co-sharers of 3/8
share each in the suit property. It is alleged that Jagannath
had no issue. He had adopted Chandra Bhan who happens to
be the son of his real sister and the sister’s husband’s name
was also Jagannath. Ceremony of adoption was performed in
accordance with the customs of the community prevalent
among the parties in the month of Flagun Samvat 1985. There
was a custom in the community of the co-sharers to adopt
sister’s son and Smt. Shanti Devi was wife of Chandra Bhan.
The plaintiffs wanted to get the suit property partitioned and
have their separate 1/4th share in the suit property. On the
above pleadings the relief claimed was that the suit property
be partitioned by metes and bounds and the plaintiffs be given
possession on the separate share allotted to them.
Defendant no.2 did not file any written statement and
suit against him proceeded ex-parte.
Defendant no.1 (present respondent no.1) and
defendant nos. 3 and 4 contested the suit by filing separate
written statements. Defendant no.1 in her written statement
denied the claim of the plaintiffs and it was pleaded that
plaintiff no.1 Om Prakash was tenant of Smt. Chawali Devi
on part of the land of the disputed property at the rate of
Rs.65/- per month as rent. He inducted plaintiff no.2 as
subtenant. Smt. Chawali Devi, mother of defendant no.1
Smt. Satya Gupta succeeded to the share of Chawali Devi in
the suit property. She filed suit no.31 of 1985 for ejectment
of the plaintiffs, which was then pending. The family
pedigree was accepted subject to the correction that Chandra
Bhan and Shanti Devi were wrongly shown as son of
Jagannath and widow of Chandra Bhan. Jagannath died
issueless. Likewise Battu Mal had not adopted any son,
Brijesh Kumar, and defendant no.2 Brijesh Kumar was not
adopted son of Battu Mal. At the time of his death, Battu Mal
was owner of the entire suit property and on his death his
widow Smt. Chawali Devi became owner in possession and
on Chawali Devi’s death, defendant no.l Smt. Satya Gupta
being her daughter became owner in possession of the entire
suit property. The plaintiffs and other defendants have no
share in the suit property. The sale-deed executed by Smt.
Shanti Devi in favour of the plaintiffs is null and void.
Jagannath had not adopted Chandra Bhan son of his sister
and according- to the Hindu custom in ’Vaishya’ community
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sister’s son cannot be adopted. No such custom was
prevalent in the ’Vaishya’ community of Hapur. Hence the
alleged adoption was illegal. Jagannath died issueless about
50 years back and on his death Dina Nath, Anand Swaroop
and Battu Mal alias Jagat Swaroop became owners in
possession by survivorship and their names were mutated in
the Municipal records on the application moved by Dina
Nath and Battu Mal in the year of 1935. Thereafter Battu
Mal has purchased the share of Dina Nath and Anand
Swaroop and thus Battu Mal became sole owner of the suit
property. Relevant entries were made in the Municipal
records for the assessment years 1946-51. Battu Mal was
murdered. One Surendra Kumar and Smt. Basanti Devi had
no share in the suit property. But in order to avoid any
dispute defendant Satya Gupta had purchased 1/2 share
from Surendra Kumar and Smt. Basanti Devi. Battu Mal had
never adopted Brijesh Kumar and Brijesh Kumar is son of
one Shambhu Saran who was distantly related to Battu Mal.
Brijesh Kumar was sentenced to life imprisonment for
committing the murder of Battu Mal in the year 1956 and
thus Brijesh Kumar was not entitled to succeed to the
property of Battu Mal. One Sri Hari Shanker Bansal (father
of Defendants no. 3 and 4) was tenant of Smt. Chawali Devi
on part of the suit property for about last 25 years and he
had constructed one pucca room on the land under his
tenancy. Plaintiff No.1, Om Prakash was also given 7 x 7 feet
land of suit property on rent by Smt. Chawli Devi on which a
temporary wooden Khokha was kept by Om Prakash in
which he was doing Crockery and Shamiyana business. It
was also pleaded that Smt. Chawali Devi executed a will
dated 21.6.1962 in favour of Defendant 1 in respect to her
entire property. She died on 23.5.1980 and on her death
defendant no.1 filed Testamentary Suit No.1/81 in the High
Court on the basis of the will dated 21.6.1962 and she was
granted Letters of Administration on 9.4.1984. Defendant
no.1 is in possession of the suit property for last about 20
years and her name is entered in the Municipal Records as
owner of the disputed property. Plaintiffs never objected to
it. The answering defendant sold by a registered sale deed
properties to Bansals (Defendants Nos. 3 & 4) and they are
necessary parties to the suit.
Defendants Nos. 3 & 4 in their written statements
adopted the pleadings of defendant no.1 and categorically,
alleged that according to the Hindu custom sister’s son
cannot be adopted, hence alleged adoption of Chandra Bhan
by Jagannath was against law.
Plaintiffs filed replication in which it was reiterated that
in the Township of Hapur, where Jagannath, Anand Swaroop
etc. lived, there was a custom prevalent among Vaish
community to adopt son of sister. It was also pleaded that
since only Battu Mal lived in Ghaziabad, he got his name
mutated in the Municipal Records. In the sale deed executed
by Surendra Kumar and Basanti Devi in favour of defendant
No.l’s 1/4th share is shown to have been sold as 1/3rd share
to defendant no. l .
On the pleadings of the parties, the trial court framed a
number of issues. Relevant issues are issues nos.1 and 2
which were as follows:
1. Whether a custom was prevalent in Vaish community to
validly adopt son of the sister?
2. Whether Jagannath had legally adopted Chandra Bhan
as a son, if so what is its effect?
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Both the parties adduced oral as well as documentary
evidence. The trial court on consideration of the evidence
adduced before it and also on consideration of legal position
recorded finding that the plaintiffs have failed to establish that
Jagannath had legally adopted Chandra Bhan as his son.
They have also failed to establish that in the Township of
Hapur a custom was prevalent in Vaish community, to validly
adopt son of sister. The trial court also recorded a finding of
fact that the plaintiffs have failed to establish that the
formalities of adoption were observed in accordance with law.
On the other issue also the trial court recorded finding of fact
against the plaintiffs. The trial court accordingly dismissed the
suit.
The First Appellant Court reversed the findings and held
that the custom of adoption was prevalent amongst
community and, therefore, Chander Bhan was the legally
adopted son of Jagannath in the suit property and on his
death, widow of Chander Bhan had 1/4th share in the
property. The plaintiff’s suit was accordingly decreed. The
High Court in the second appeal formulated the following
questions for determination:
1. Whether the plaintiffs/respondents have
successfully discharged the burden of proof to
establish that there existed a custom in the Vaish
community to which the lineal descendants of Paras
Ram belonged, to adopt the son of sister?
2. Whether a Hindu belonging to the regenerated
class could be adopted after performance of ’Janeu’
ceremony?
3. Whether for proving the factum of adoption it
was necessary to lead evidence of giving and taking
of an adopted child at the time of ceremony of
adoption?
4. Whether recital in a document regarding
alleged adoption is sufficient for proving of the
factum of adoption?
3. The High Court found that question no.3 as formulated
above was not a substantial question of law but held that
there was no prevalent custom permitting adoption of the
sister’s son and, therefore, the appeal was allowed.
4. In support of the appeal learned counsel for the
appellants submitted that the custom was established. There
was enough material to show that the family members treated
Chander Bhan as the adopted son and, therefore, the First
Appellate Court’s judgment and decree should have been
maintained. It was submitted that the Trial Court and the
High Court should not have given any undue importance to
the fact about the Jenau ceremony being held on the same
day, overlooking the fact that the evidence was being given by
the witness who was more than 80 years old. It is submitted
that even if the defendants acquire any title because of the
transaction with Anand Swarup his share was 1/4th and in
any event the defendants cannot claim 1/3rd share. It is
further submitted that even if the stand about the acceptance
of Chander Bhan as an adopted son is to be accepted, that in
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any event do away with the requirement to prove legality of
adoption. It is to be noted that the adoption took place
sometime in 1928-1929.
In response, learned counsel for the respondents
submitted that the custom was not established. Evidence of
PWs 1, 2 and 3 did not prove existence of custom.
The rival stands need careful consideration.
6. Since the alleged adoption took place prior to enactment
of Hindu Adoptions and Maintenance Act, 1956 (in short the
’Act’), the old Hindu Law is applicable.
It would be desirable to refer to certain provisions of the
Act, and the Hindu Code which governed the field prior to the
enactment of the Act. Section 3(a) of the Act defines ’custom’
as follows
"3. Definitions.- In this Act, unless the context
otherwise requires, -
(a) the expressions, ’custom’ and ’usage’ signify
any rule which, having been continuously and
uniformly observed for a long time, has
obtained the force of law among Hindus in any
local area, tribe, community, group or family:
Provided that the rule is certain and not
unreasonable or opposed to public policy; and
Provided further that, in the case of a
rule applicable only to a family, it has not been
discontinued by the family;"
Section 4 provides that any text, rule or interpretation of
Hindu Law or any custom or usage as part of that law in force
immediately before the commencement of the Act shall become
inoperative with respect to any matter for which provision was
made in the Act except where it was otherwise expressly
provided. Section 4 gives overriding application to the
provisions of the Act. Section 5 provides that adoptions are to
be regulated in terms of the provisions contained in Chapter II.
Section 6 deals with the requisites of a valid adoption. Section
11 prohibits adoption; in case it is of a son, where the adoptive
father or mother by whom the adoption is made has a Hindu
son, son’s son, or son’s son’s son, whether by legitimate blood
relationship or by adoption, living at the time of adoption.
Prior to the Act under the old Hindu Law, Article 3 provided as
follows
"Article 3-(1) A male Hindu, who has attained
the age of discretion and is of sound mind,
may adopt a son to himself provide he has no
male issue in existence at the adoption.
(2) A Hindu who is competent to adopt may
authorise either his (i) wife or (ii) widow (except
in Mithila) to adopt a son to himself."
Where a son became an outcast or renounced Hindu religion,
his father became entitled to adopt another. The position has
not changed after enactment of Caste Disabilities Removal Act
(XXI of l850) as the outcast son does not retain the religious
capacity to perform the obsequial rites. In case parties are
governed by Mitakshara Law, additionally adoption can be
made if the natural son is a congenital lunatic or an idiot.
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Relevant provisions relating to custom as defined in the Hindu
Code are as follows:
"Custom defined.-- Custom is an established
practice at variance with the general law.
Nature of custom.- A custom varying the
general law may be a general, local, tribal or
family custom.
Explanation 1.- A general customs includes a
custom common to any considerable class of
persons.
Explanation 2.- A custom which is applicable
to a locality, tribe, sect or a family is called a
special custom.
Custom cannot override express law -
(1) Custom has the effect of modifying the
general personal law, but it does not override
the statute law, unless it is expressly saved by
it.
(2) such custom must be ancient, uniform,
certain, peaceable, continuous and
compulsory.
Invalid Custom \026 No custom is valid if it is
illegal, immoral, unreasonable or opposed to
public policy.
Pleading and proof of custom \026 (1) He who
relies upon custom varying the general law
must plead and prove it.
(2) Custom must be established by clear and
unambiguous evidence."
(See Sir H.S. Gour’s Hindu Code Volume 1,
Fifth Edition.)
Custom must be ancient, certain and
reasonable as is generally said. It will be
noticed that in the definition in Cl. (a) of
Section 3 of the Act, the expression ’ancient’ is
not used, but what is intended is observance
of custom or usage for a long time. The
English rule that ’ a custom, in order that it
may be legal and binding, must have been
used so long that the memory of man runneth
not to the contrary’ has not been strictly
applied to Indian conditions. All that is
necessary to prove is that the custom or usage
has been acted upon in practice for such a
long period and with such invariability and
continuity as to show that it has by common
consent been submitted to as the established
governing rule in any local area, tribe,
community, group or family. Certainty and
reasonableness are indispensable elements of
the rule. For determination of the question
whether there is a valid custom or not, it has
been emphasized that it must not be opposed
to public policy. I shall deal with the question
of public policy later on.
The origin of custom of adoption assumes great
importance. The origin of custom of adoption is lost in
antiquity. The ancient Hindu Law recognized twelve kinds of
sons of whom five were adopted. The five kinds of adopted
sons in early times must have been of very secondary
importance, for, on the whole, they were, relegated to an
inferior rank in the order of sons. Out of the five kinds of
adopted sons, only two survive today; namely, the. Dattaka
form prevalent throughout India and the Kritrima form
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confined to Mithila and adjoining districts. The primary object
of adoption was to gratify the means of the ancestors’ by
annual offerings and therefore it was considered necessary
that the offerer should be as much as possible a reflection of a
real descendant and had to look as much like a real son as
possible and certainly not be one who would never have been a
son. Therefore, the body of rules was evolved out of a phrase of
Saunaka that he must be ’the reflection of a son’. The
restrictions flowing from this maxim had the effect of
eliminating most of the forms of adoption. (See Hindu Law by
S. V. Gupte, Third Edition at pages 899-906). The whole law of
Dattaka adoption is evolved from two important texts and a
metaphor. The texts are of Manu and Vasistha, and the
metaphor that of Saunaka. Manu provided for the identity of
an adopted son with the family into which he was adopted.
(See: Manu.Chapter IX, pages 141-142, as translated by Sir W.
Jones). The object of an adoption is mixed, being religious and
secular. According to Mayne, the recognition of the institution
of adoption in early times had been more due to secular
reasons than to any religious necessity, and the religious
motive was only secondary; but although the secular motive
was dominant, the religious motive was deniable. The religious
motive for adoption never altogether excluded the secular
motive. (See Mayne’s Hindu Law and Usage, Twelfth Edition,
page 329).
As held by this Court in V.T.S. Chandrashekhara
Mudalie v. Kulandeivelu Mudalier (AIR 1963 SC 185),
substitution of a son for spiritual reasons is the essence of
adoption; and consequent devolution of property is mere
accessory to it; the validity of an adoption has to be judged by
spiritual rather than temporal considerations; and, devolution
of property is only of secondary importance.
In Hem Singh v. Harnam Singh (AIR 1954 SC 581), it
was observed by this Court that under the Hindu Law
adoption is primarily a religious act intended to confer
spiritual benefit on the adopter and some of the rules have
therefore been held to be mandatory, and compliance with
them regarded as a condition of the validity of the adoption.
The first important case on the question of adoption was
decided by the Privy Council in the case of Amarendra
Mansingh v. Sanatan Singh, AIR 1933 PC 155. The Privy
Council said
"Among the Hindus, a peculiar
religious significance has attached
to the son, through Brahminical
influence, although in its origin the
custom of adoption was perhaps
purely secular. The texts of the
Hindus are themselves instinct with
this doctrine of religious
significance. The foundation of the
Brahminical doctrine of adoption is
the duty which every Hindu owes to
his ancestors to provide for the
continuance of the line and the
solemnization of the necessary
rites."
With these observations it decided the question before it, viz.,
that of setting the limits to the exercise of the power of a
widow to adopt, having regard to the well established doctrine
as to the religious efficacy of sonship. In fact the Privy Council
in that case regarded the religious motive as dominant and the
secular motive as only secondary.
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This object is further amplified by certain observations of
this Court. It has been held that an adoption results in
changing the course of succession, depriving wife and
daughters of their rights, and transferring the properties to
comparative strangers or more remote relations. [See : Kishori
Lal v. Chaltibai (AIR 1959 SC 504)]. Though undeniably in
most of the cases motive is religious, the secular motive is also
dominantly present. We are not concerned much with this
controversy, and as observed by Mayne it is unsafe to embark
upon an enquiry in each case as to whether the motives for a
particular adoption were religious or secular and an
intermediate view is possible that while an adoption may be a
proper act, inspired in many cases by religious motives, courts
are concerned with an adoption, only as the exercise of a legal
right by certain persons. The Privy Council’s decision in
Amarendra Mansingh’s case (supra), has reiterated the well
established doctrine as to the religious efficacy of sonship, as
the foundation of adoption. The emhasis has been on the
absence of a male issue. An adoption may either be made by a
man himself or by his widow on his behalf. The adoption is to
the male and it is obvious that an unmarried woman cannot
adopt. For the purpose of adoption is to ensure spiritual
benefit for a man after his death by offering of oblations and
rice and libations of water to the manes periodically. Woman
having no spiritual needs to be satisfied, was not allowed to
adopt for herself. But in either it is a condition precedent for a
valid adoption that he should be without any male issue living
at the time of adoption."
6. In Mookka Kone v. Ammakutti Ammal [AIR 1928 Mad
299 (FB)], it was held that where custom is set up to prove
that it is at variance with the ordinary law, it has to be proved
that it is not opposed to public policy and that it is ancient,
invariable, continuous, notorious, not expressly forbidden by
the legislature and not opposed to morality or public policy. It
is not disputed that even under the old Hindu law, adoption
during the lifetime of a male issue was specifically prohibited.
In addition, I have observed that such an adoption even if
made would be contrary to the concept of adoption and the
purpose thereof, and unreasonable. Without entering into the
arena of controversy whether there was such a custom, it can
be said that even if there was such a custom, the same was
not a valid custom."
It is incumbent on party setting up a custom to allege and
prove the custom on which he relies. Custom cannot be
extended by analogy. It must be established inductively and
not by a priori methods. Custom cannot be a matter of theory
but must always be a matter of fact and one custom cannot be
deduced from another. It is a well established law that custom
cannot be enlarged by parity of reasoning.
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; but the decision
would not in that case be a satisfactory precedent if in any
future suit between other parties fuller evidence with regard to
the alleged custom should be forthcoming. A judgment relating
to the existence of a custom is admissible to corroborate the
evidence adduced to prove such custom in another case.
Where, however a custom is repeatedly brought to the notice
of the courts, the courts, may hold that the custom was
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introduced into law without the necessity of proof in each
individual case.
Custom is a rule which in a particular family or a
particular class or community or in a particular district has
from long use, obtained the force of law. Coming to the facts of
the case P.W.1 did not speak any thing on the position either
of a local custom or of a custom or usage by the community,
P.W.2, Murari Lal claimed to be witness of the ceremony of
adoption he was brother-in-law of Jagannath son of Pares
Ram who is said to have adopted Chandra Bhan. This witness
was 83 years old at the time of deposition in the Court. He did
not speak a word either with regard to the local custom or the
custom of the community. P.W.3 as observed by the lower
appellate Court was only 43 years’ old at the time of his
deposition where as the adoption had taken place around 60
years back. He has, of course, spoken about the custom but
that is not on his personal knowledge and this is only on the
information given by P.W.2, Murari Lal. He himself did not
speak of such a custom. The evidence of a plaintiff was thus
insufficient to prove the usage or custom prevalent either in
township of Hapur and around it or in the community of
Vaish. The evidence of D.W.3 refers only to one instance.
From his evidence it cannot be inferred that Om Prakash had
adopted Munna Lal who was his real sister’s son. As already
pointed out above, the trial court found that the evidence of
D.W.3 was not so clear and unambiguous as to lead to no
other conclusion except that Munna Lal was son of real sister
of Om Prakash. Besides, this solitary instance of adoption of
his sister’s son cannot amount to long usage, which has
obtained the force of law. Mulla has categorically commented
that where the evidence shows that the custom was not valid
in numerous instances, the custom could not be held to be
proved. A custom derives its force from the evidence from long
usage having obtained the force of law.
All that is necessary to prove is that usage has been
acted upon in practice for such a long period with such
invariability as to show that it has, by consent, been
submitted so as to establish governing rules of a particular
locality or community.
A custom, in order to be binding must derive its force
from the fact that by long usage it has obtained the force of
law, but the English rule that "a custom in order that it may
be legal and binding, must have been used long that the
memory of man runneth not to the contrary" should not be
strictly applied to Indian conditions. All that is necessary to
prove is that the usage has been acted upon in practice for
such a long period and with such invariability as to show that
it has, by common consent, been submitted to as the
established governing rule of a particular locality.
A custom may be proved by general evidence as to its
existence by members of the tribe or family who would
naturally be cognizant of its existence, and its exercise without
controversy, and such evidence may be safely acted on when it
is supported by a public record of custom such as the Riwaj-i-
am or Manual of Customary Law.
In yet another decision reported in Hem Singh and
another v. Hakim Singh and another (AIR 1954 SC 581), this
Court observed that the custom recorded in the ’Riwaj-i-am’ is
in derogation of the general custom and those who set up such
a custom must prove it by clear and unequivocal language.
Similarly, when a custom is against the written texts of the
Hindu Law then, one who sets up such a custom must prove it
by a clear and unequivocal language. It may also be pointed
out that the settled law is that for a valid adoption, not only
the person adopting should be capable of lawfully taking in
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adoption; but the person giving must be capable of lawfully
giving in adoption and the person adopted must be capable of
being lawfully taken in adoption. It is necessary that all these
three conditions should be satisfied and that it is not sufficient
that one of them be satisfied. In the case of Hem Singh (supra)
this court quoted with approval of some of the observations in
Mulla’s Principles of Hindu Law at Page 541 of XI Edition with
such observations in paragraph 434 to the following effect:
"It has similarly been held that the texts which
prohibit the adoption of an only son, and those
which prohibit the adoption of an only son,
those which enjoin the adoption of a relation in
preference to a stranger, are only directory;
therefore, the adoption of an only son, or a
stranger in preference to a relation, if
completed, is not invalid; that in cases such as
the above, where the texts are merely
directory, the principle of factum valet applies,
and the act done is valid and binding."
But just thereafter the following observations occurred in
the same paragraph :
"But the texts relating to the capacity to give,
the capacity to take, and the capacity to be the
subject of adoption are mandatory. Hence the
principle of factum valet is ineffectual in the
case of an adoption in contravention of the
provisions of those texts."
So far as the evidence adduced is concerned, reliance
was placed on the evidence of three witnesses. As noted above
PW 1 did not speak about any custom. Similarly, PW 2 did
not speak about any custom though he claimed to be present
at the time of adoption. The present appellant was PW 3. He
is outsider of the family. He also accepted that he did not
have personal knowledge about the custom. He only stated
that PW2 told him about the custom. Significantly PW2 did
not speak about any existence of any custom. Appellant PW 3
also accepted that he did not find out as to what was the
custom if any and also that he does not know any other
instance. Though the Appellate Court had referred to evidence
of DW3 to hold that he had accepted that the custom was in
existence. As a matter of fact, his evidence is contrary to and
is specific that there was no custom. The First Appellate Court
had relied on the evidence of Munna Lal to conclude that the
son of Reba Saran was given in adoption. Munna Lal
specifically stated that the son of Jagannath who was taken in
adoption is not the son of sister of Saran.
8. In view of the aforesaid factual situation and the
principles of law enumerated above, the inevitable conclusion
is that the appeal is sans merit, deserves dismissal, which we
direct.