Bombay High Court
Nemichand Shantilal Patni vs Basantabai on 21 January, 1994
Equivalent citations: AIR1994BOM235A, 1994(3)BOMCR550, (1994)96BOMLR737, II(1994)DMC437, 1994(2)MHLJ1078, AIR 1994 BOMBAY 235, 1994 BOM CJ 293, (1994) 2 DMC 437, (1994) 2 HINDULR 55, (1994) MAH LJ 1078, (1996) 1 CIVILCOURTC 259, (1995) 21 MARRILJ 54, (1996) 2 LJR 165, (1994) 2 CURCC 369, (1994) MATLR 335, (1994) 3 BOM CR 550
JUDGMENT
1. This is a second appeal by the original plaintiff who has lost Regular Civil Suit No. 97 of 1983 as well as Regular Civil Appeal No. 180 of 1986 against the present respondent-defendant.
2. One Shantilal Patni was the husband of Kundanbai and the father of defendant Basantabai. Shantilal expired on 29-4-1969 leaving behind him wife and daughter but no male issue. Deceased Shantilal was having agriculture land bearing survey No. 15 (Gat No. 34) at village Naigaon, Taluka Gangapur which came to be acquired by the Government and the compensation amount was lying in the office of the Land Acquisition Officer, Aurangabad at that time. As Shantilal had not left any male issue behind him, his wife Kundanbai adopted the plaintiff Nemichand as her son on 11-5-1969, that is, on the 13th day of the death of Shantilal.
3. It is the case of the plaintiff Nemichand that he was adopted as per the desire of Shantilal and all the necessary ceremonies according to the custom prevailing in their community were duly performed. The plaintiff Nemichand claims, therefore, a succession to the property of Shantilal as adopted son. Kundanbai, the adoptive mother, then expired on 8-1-1973. But, prior to that had executed an adoption deed on 21-11-1970. The plaintiff therefore claims to be an adoptive son of deceased Kundanbai and as such challenges her last will executed in favour of defendant. To get a declaration as adopted son and for the relief of perpetual injunction restraining the defendant from receiving the compensation amount of the property, the plaintiff Nemichahd filed Regular Civil Suit No. 97 of 1983.
4. The suit was resisted by the defendant by a written statement (Exh. 13) and the adoption as well as the deed came to be denied. As per the defendant, she being the daughter of Shantilal, claimed ownership by succession. It is further case that after the death of Shantilal, she and her mother Kundanbai succeeded to the property and deceased Kundanbai herself in her lifetime executed her last will on 6-12-1972 bequeathing her interest in the property in favour of her daughter-defendant.
5. On framing necessary issues and on consideration of evidence on record the trial Court refused to accept the plaintiff as adopted son of the deceased Kundanbai and further held defendant as entitled to the property on the basis of the will deed. By an order dated 15-4-1986 the plaintiff was nonsuited and his Regular Civil Appeal No. 180 of 1986 also came to be dismissed by an order dated 14-3-1990. It is against these two decrees that the plaintiff has approached this Court in this second appeal.
6. Before considering the crucial points in respect of the custom prevalent in the community and its proof certain admitted facts are required to be noted. It is not disputed that the plaintiff Nemichand was 30 years old in age and was also married and was having the issues at the time of his adoption. It is further the case of the plaintiff that in his community a married boy of above 15 years old in age can go in adoption and a custom or usage to that effect was often in use.
7. Section 10 of the Hindu Adoptions and Maintenance Act prescribes four conditions for a valid adoption. There is no dispute in respect of the first two conditions in the present case. The conditions (iii) and (iv) prescribe that person to be adopted should not be a married one and must not have completed the age of 15 years unless there is a custom or usage applicable to the parties permitting such adoptions. It is, therefore, clear that the first two conditions accept no exceptions while the subsequent conditions are subject to a contray rule prevalent in the community by reason of a custom or usage. It is on the basis of this exception to conditions (iii) and (iv) that the plaintiff claims a valid and legal adoption inasmuch as, he had crossed the maximum age of 15 years and was also married at the time of this adoption. Section 3 of the said Act prescribes as to what is required to make an act or conduct amounting to custom or usage. According to it, it must be a rule which has obtained the force of law because of its open, continuous and uniform observation for a long time and such a rule should not be uncertain, unreasonable or opposed to any public policy. It is to be considered in the case at hand as to whether the plaintiff proves by sufficient evidence on record that there was a custom or usage in his community permitting the adoption of a married boy of more than 15 years in age and whether such a custom or usage was observed openly, continuously and uniformly thereby gaining the force of law. It is pertinent to note that such a case of custom or usage in the community and the adoption in pursuance of such a custom is conspicuously absent. It is not pleaded in the suit that there was any such custom or usage in his community providing exceptions to conditions (iii) and (iv) of S. 10 of the Act nor there is any whisper that the adoption of the plaintiff was made in conformity and in pursuance of such a custom or usage. It is material to note that what is averred in the plaint by the plaintiff is not that there was any such custom or usage but the adoption of the plaintiff by Kundanbai was performed as per customary ceremonies. Even if a maximum latitude is to be given to the averments in the plaint so as to take a generous view, the plaintiff has even failed to prove such a custom in his community. Admittedly, the plaintiff adduced no evidence of any independent witness to prove a custom that in the community of Digamber Jain Khandelwal to which the parties belong, a married person above 15 years of age can be validly adopted. Further, it is material to note that even though it was the case of the plaintiff himself that several persons of his community were present at the time of this adoption, not a single independent witness has been examined. The plaintiff adduced the evidence of three witnesses, namely, PWs 2, 3 and 5 and even though all of them are unanimous that a married boy can go in adoption in their community, none of them even whispered about the age of the boy to be adopted. It is not even indicated in the evidence of any of these three witnesses that there was any such custom in the community to adopt a boy who had crossed 15 years in age. These three witnesses were admittedly not the Panchas or office bearers of the community and, as stated above, no independent person came forward to prove a custom in the community of Digamber Jain Khandelwal for a valid adoption of a married person even if he is above the age of 15 years. The exceptions provided to conditions (iii) and (iv) of S. 10 of the Act are not, therefore, sufficiently carved out in the case at hand and as such, the bars prescribed by these two conditions in respect of the marriage and age of the adopted boy come in the way of the present plaintiff. Both the Courts below were, therefore, justified and right in holding that the plaintiff failed to prove any custom as alleged and as such, the necessary requirements of S. 10 for a valid adoption were not complied with.
8. Shri P. R. Deshmukh, learned counsel for the appellant, submitted that the parties to this litigation are Jains and the object of adoption in this community is to secure an heir and perpetuate the adopter's name. According to Shri Deshmukh, the learned counsel for the appellant, the adoption in this community has no religious significance and there is no restriction of age or marriage nor any special ceremony is necessary to give legal effect to adoption. Shri Deshmukh for this proposition relied on a ruling in Suraj Mal v. Babu Lal, , and submitted that such a custom to adopt a married boy without any restriction of age was neither immoral nor against the public policy. Reliance is also placed by Shri Deshmukh, the learned counsel for the appellant, on a ruling in Anirudh Jagdeorao v. Babarao, (FB) for the proposition that, the Hindus in Marathwada area were governed by Vyavahara Mayukha school of Hindu Law which permitted a widow to adopt a boy over 15 years of age in adoption and also a married person. Shri Deshmukh further relied on a ruling in Kondiba R. Papel v. Narayan K. Papal, approving the ruling in . It is, therefore, submitted that as the parties to the present proceedings are also Jains and from Marathwada area, the custom having been recognised by law, makes the adoption of the present plaintiff as legal.
9. It is, however, to be noted that in the case of Suraj Mal v. Babu Lal referred to above, the parties were Jains of Oswal sect and were residents of Delhi and on evidence it was found that the boy was adopted according to the custom prevailing in Delhi in Jain community permitting the adoption without any restriction to the marriage or age. In the case of Anirudh Jagdeorao the parties were Hindu belonging to Maratha community and a custom was pleaded and proved in that community to take in adoption any person even above the age of 15 years and even though such adopted person was a married one. So also in the case of Kondiba Rama it was found on evidence that the custom prevailed amongst them that the person may adopt at any age though he may be older than the adopter and was married and have children. It was also found that the evidence was led of 2 instances of such adoptions of persons belonging to the same caste and as such when the factum of adoption was established by sufficient evidence, its validity was upheld on the ground of custom as judicially recognised. It is to be noted further that the parties to the present proceedings are Digamber Jain Khandelwal, and, as observed above, not a single person was examined to prove the alleged custom in this community permitting the adoption of a married person and also above the age of 15 years. It need not be stated that the parties setting up a particular custom is required not only to allege but to prove it so as to make such a custom to be a rule of law as applicable to the concerned parties. Shri Nawandar, the learned counsel for the respondent, in this connection relied on a ruling in T. Saraswathi Animal v. Jagadambal, , wherein it is ruled that custom cannot be extended by analogy and it cannot be established by a "priori" methods. In the same ruling it is further laid down that it is not that any theory of custom or deductions from other customs which can be made a rule of decision but only any custom applicable to the parties concerned that can be the rule of decision in a particular case. If the facts, as brought on record in the case at hand, are re-averted, it is clear that neither the plaintiff sets such a custom in his plaint nor proves it on which he relies so as to succeed to the properties of his mother Kundanbai.
10. Shri Nawandar, the learned counsel for the respondent, further submitted that there are additional hurdles in the way of the plaintiff and the adoption has to be held invalid because of non-compliance of conditions (iv) and (vi) of S. 11 of the Hindu Adoptions and Maintenance Act 1956. According to Shri Nawandar, the learned counsel for the respondent, these two conditions do not accept any exception and there can be no question of any custom or usage in the community providing otherwise than required by these two conditions. It is, therefore, submitted that for a valid adoption the adoptive mother must be at least 21 years older than the person to be adopted and further the child must be shown to have been actually given and taken in adoption. There is sufficient and substantive force in the above submissions. Section 11 of the Act lays down further a proviso for a valid adoption and as per the proviso, it is only the performance of datta homam which has been dispensed with for a valid adoption. Conditions (iv) and (vi) raise a bar and prescribe the minimum difference of age between the adoptive mother and the adopted person. So also it is prescribed that there must be actual giving and taking of the child by the parents or guardian concerned. It is therefore to be ascertained as to whether the case of the valid adoption of the plaintiff is also affected by these two conditions.
11. As stated above, the plaintiff was admittedly 30'years old at the time of the adoption. It is further admitted by the plaintiff in para 16 of his evidence so also the adoption deed (Exh. 116) that Kundanbai, the adoptive mother, was 50 years old at the time of the deed (Exh. 116). Admittedly, the adoption ceremony was performed on 11-5-1969 and the deed (Exh. 116) is dated 21-11-1970. It is, therefore, clear that at the time of the adoption, the plaintiff was 30 years old while the adoptive mother was 48 years and 6 months in age. As such, the adoptive mother Kundanbai was older by 19 years than the plaintiff. There is, therefore, the breach of condition (iv) as the adoptive mother was not at least 21 years older than the person adopted. There is also a legal bar against the valid adoption of the plaintiff raised by condition (vi) of S. 11 of the Act. There is absolutely no evidence in the case at hand that the plaintiff Nemichand was actually given and taken in adoption by the parents or guardian concerned as required by that condition. It is in the evidence of the plaintiff himself as well as his three witnesses that the plaintiff Nemichand himself sat on the lap of Kundanbai and the adoption was effected. There is no whisper in the evidence that either the parents or the guardian of Nemichand actually gave him in adoption during their lifetime. Shri Nawandar, the learned counsel for the respondent, then relied on a ruling in Lakshman Singh v. Kanwar, , wherein it is held that, the transfer of adoptive boy by ceremony of giving and taking is essential condition for a valid adoption even though there is no particular form of giving and taking prescribed. It is laid down in the said case that, nature of the ceremony may vary depending upon the circumstances of each case but there must be a ceremony of giving and taking. As stated above, this condition No. (vi) of S. 11 of the Act does not accept any exception or explanation in the form of a contrary usage or custom prevalent in the community. The only proviso is in respect of performance of Datta Homa and it is, therefore, clear that there may not be the performance of Datta Homa but there must be actual giving and taking in adoption of the child that is essential to the validity of an adoption. As stated above, the evidence in the case at hand not only falls too Short but is totally absent on this count.
Therefore, the conditions (iv) and (vi) of S. 11 of the Act are not at all complied with and as such, the adoption of the plaintiff cannot be upheld as valid. It may also lastly be men-
tioned that the conduct on the part of the plaintiff subsequent to the alleged adoption is also eloquent and both the Courts have found that in respect of this alleged adoption, the plaintiff Nemichand continued his actions and dealt with the properties not as a son of Kundanbai but in his prior name as if there was no adoption at all. Both the Courts below, therefore, rightly held that the plaintiff cannot be held to be an adopted son of Kundanbai and he has been rightly denied his succession to the properties of Kundanbai.
The suit of the plaintiff for declaration as an adopted son of Kundanbai has therefore been rightly dismissed. Admittedly, the defendant-
respondent is the daughter of Kundanbai and Kundanbai has also executed her last will in her favour bequeathing her own share in the suit properties in favour of her daughter after the death of her husband Shantilal. The plaintiff was, therefore, rightly non-suited in respect of the consequential relief of perpetual injunction restraining the defendant from receiving the compensation amount which was due and payable to her.
The second appeal is therefore devoid of any
substance and as such, is liable to be
dismissed.
12. In the result, Second Appeal No. 201
of 1990 is hereby dismissed. There shall
however be no order as to costs of this second
appeal.
13. Appeal dismissed.