Gujarat High Court
Mukeshkumar Govindbhai vs Assistant Collector & 2 on 12 August, 2016
Author: Z.K.Saiyed
Bench: Z.K.Saiyed
C/SA/74/2000 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SECOND APPEAL NO. 74 of 2000
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE Z.K.SAIYED
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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MUKESHKUMAR GOVINDBHAI....Appellant(s)
Versus
ASSISTANT COLLECTOR & 2....Respondent(s)
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Appearance:
MS UTPALA S. BORA with MR MC BHATT, ADVOCATE for the Appellant(s)
No. 1
MR BIPIN BHATT, AGP for the Respondent(s) No. 3
NOTICE SERVED for the Respondent(s) No. 1 - 2
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CORAM: HONOURABLE MR.JUSTICE Z.K.SAIYED
Date : 12/08/2016
CAV JUDGMENT
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1. The appellant has filed present appeal under Section 100 of the Civil Procedure Code praying to quash and set aside the judgment and decree passed by Second Joint District Judge, Junagadh, dated 27.9.2000 in Regular Civil Appeal No.196 of 1990 and to restore the judgment and decree passed by the learned Civil Judge (S.D.), Junagadh in Regular Civil Suit No.474 of 1988.
2. The brief facts of the appellant case are that, the plaintiff is an adoptive son of one Shri Patel Govindbhai Becharbhai. Late Shri Govindbhai Becharbhai adopted him as a son on 7.5.1982 by a registered adoption deed. The plaintiff obtained a letter of administration under the provisions of the Indian Succession Act. After the death of Govindbhai Becharbhai the plaintiff applied to the Revenue Authority to enter his name as an heir of deceased Govindbhai Becharbhai Patel in the revenue record of land. The revenue authority held that there is no legal adoption and as the age of the plaintiff was 21 years at the time of adoption, as per the provisions of the Hindu Adoption and Maintenance Act, 1956, plaintiff cannot be held as an adoptive son of deceased Govindbhai Becharbhai Patel and, Page 2 of 10 HC-NIC Page 2 of 10 Created On Sat Aug 13 04:35:44 IST 2016 C/SA/74/2000 CAV JUDGMENT therefore, they rejected the claim of the plaintiff. The Assistant Collector passed an order dated 27.5.1985, against the which the plaintiff preferred an appeal before the Collector, but the said appeal was also dismissed by the Collector against which the plaintiff preferred revision application before the Special Secretary, Revenue Department, which was also dismissed by order dated 24.6.1988. Thereafter plaintiff filed Regular Civil Suit No.474 of 1988. The learned Civil Judge (S.D.) Junagadh vide judgment and order dated 7.8.1990 allowed the suit. The original defendants filed Regular Civil Appeal No.196 of 1990. The said appeal was allowed vide judgment and order dated 26.9.2000.
3. Heard Ms.Utpala S. Bora, learned advocate for the appellant. She has submitted that learned Appellate Court has misread and misconstrued the documentary evidence produced on record. She has submitted that learned Appellate Court erred in law while setting aside the decree passed by the trial Court as well as in interpreting the provisions contained in Hindu Adoption and Maintenance Act. She has submitted that learned Appellate Court erred in appreciating Page 3 of 10 HC-NIC Page 3 of 10 Created On Sat Aug 13 04:35:44 IST 2016 C/SA/74/2000 CAV JUDGMENT the required mode of proof of custom and not properly appreciating the deed of adoption.
4. She has submitted that learned Appellate Court erred in not appreciating that in a proceeding pertaining to record of rights, no order could have been passed for cancellation of original grant of land made by the Government way back in 1967 to the adoptive father of the appellant. She has submitted that proceeding for cancellation of grant of land and/or for summary eviction are totally distinct and different than the proceedings under record of rights. The proceeding before the revenue authority was only pertaining to record of rights and, therefore, the question of title could not have been decided and no order could have been passed for cancellation of grant of land made in 1967.
5. She has submitted that learned Appellate Court has not taken into consideration the unchallenged oral evidence of witnesses who have deposed that there is a custom in Patel community as well as in Sadhu community for adoption of a person of more than 15 years of age. In such peculiar facts and circumstances of the case, the oral evidence led by the appellant to prove the custom was not Page 4 of 10 HC-NIC Page 4 of 10 Created On Sat Aug 13 04:35:44 IST 2016 C/SA/74/2000 CAV JUDGMENT challenged in the crossexamination.
6. In support of her above submissions she has relied on the citations in the case of (1) Anirudh Jagdeorao vs. Babarao Irbaji and ors., AIR 1983 Bombay 391 (2) Kondiba Rama Papal alias Shirke (dead) by his heirs & Lrs & Anr. vs. Narayan Kondiba Papal, AIR 1991 SC 1180 (3) Gangadhar (dead) by L.Rs. vs. Surplus Land Determination Tribunal and Ors., AIR 1991 SC 1181.
7.She has submitted that there is sufficient evidence on record of the case which has not been challenged that the natural parents of the appellant have given the appellant in adoption to the adoptive father. It is clear from the evidence on record that the appellant has renounced all the relations with his natural parents and has continuously lived with his adoptive father as his son after adoption. The appellant also performed all the after death rituals and ceremony of his adoptive father. Lastly she has prayed to allow present appeal and quash and set aside the judgment and order dated 27.9.2000 passed by the Second Joint District Judge, Junagadh, in Regular Civil Appeal No.196 of 1990.
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8. Heard Mr.Bipin Bhatt, learned AGP for the respondents. He has submitted that as per provisions of the Hindu Adoption and Maintenance Act, 1956, plaintiff is not a legal adoptive son and, therefore, he is not entitled for the suit land as an heir of deceased Govindbhai Becharbhai Patel. He has submitted that plaintiff has obtained letter of administration so he is entitled to manage the property of the deceased and he cannot be treated as legal heir of the deceased. He has submitted that in adoption deed Ex.18 there is no signature of the natural father and mother of the plaintiff. He has submitted that it is not in dispute that only the child who has not completed age of 15 years is entitled for adoptive son or daughter and it is an admitted fact that present plaintiff was 21 years old at the time of adoption deed and hence burden heavily lies upon the plaintiff to establish his case under exception as provided under Section 10(4) of the Hindu Adoption and Maintenance Act, 1956. He has submitted that evidence regarding the custom is required to be given by the Panch of Samaj, while the witness who has signed the document Ex.18 is examined by the plaintiff and he has simply stated that there is a custom in Patel community to adopt son Page 6 of 10 HC-NIC Page 6 of 10 Created On Sat Aug 13 04:35:44 IST 2016 C/SA/74/2000 CAV JUDGMENT without considering the age. He has submitted that this is not sufficient to prove the custom and, therefore, the case of the plaintiff does not fall under Section 10(4) of the Hindu Adoption and Maintenance Act, 1956. Lastly he has prayed to dismiss the appeal.
9. I have heard learned advocates for the respective parties. I have considered the submissions advanced by both the sides. I have also gone through the documents produced on record. I have further gone through the orders passed by the trial Court as well as Appellate Court. The question involved in the appeal is whether deceased Govindbhai Becharbhai Patel adopted Mukesh - appellant as a son and whether it was valid or not. The second question that arises is pertaining to caste of the appellant and caste of deceased Govindbhai Becharbhai Patel, and whether a Patel community person can be adopted as a son of Sadhu community person and the third question that arises is pertaining to the age. Section 10(4) of the Hindu Adoption and Maintenance Act reads as under : "10. Person who may be adopted No person shall be capable of being taken in adoption unless the following Page 7 of 10 HC-NIC Page 7 of 10 Created On Sat Aug 13 04:35:44 IST 2016 C/SA/74/2000 CAV JUDGMENT conditions are fulfilled, namely :
(i) he or she is a Hindu;
(ii) he or she has not already been adopted;
(iii) he or she has not been married, unless there is a custom or usage applicable to the parties which permits persons who are married being taken in adoption;
(iv) he or she has not completed the age of fifteen years, unless there is a custom or usage applicable to the parties which permits persons who have completed the age of fifteen years being taken in adoption."
The trial Court has, after scrutinizing evidence placed on record held that deceased Govindbhai Becharbhai Patel - exmilitaryman was given agricultural land in question by the Government. Deceased Govindbhai Becharbhai Patel adopted Mukeshkumar - appellant by an adoption deed which is valid and registered. There is a custom and usage in the community of deceased Govindbhai Becharbhai Patel to adopt a son of more than 15 years.
10. In the case of Anirudh Jagdeorao vs. Babarao Irbaji and ors., AIR 1983 Bombay 391, the Court has held that, it is well known that Hindu Law in India is derived from various texts and commentaries some of which have by custom held the field in various Page 8 of 10 HC-NIC Page 8 of 10 Created On Sat Aug 13 04:35:44 IST 2016 C/SA/74/2000 CAV JUDGMENT parts of India. Hindu law, therefore, is by itself customary law, except to the extent to which it has been subsequently codified. In my opinion, therefore, the prohibition contained in Section 10(iv) against the person adopted who has completed the age of 15 years has no meaning in relation to male persons adopted in the territories which were comprised in the former State of Bombay which include the District of Satara from where this appeal comes. The custom or rule of Hindu law prevailing in these territories permitting adoption of males over the age of 15 years is expressly saved by Section 10(iv). The Court has further held that, "the expressions "custom" and "usage" as defined in Clause (a) of Section 3 of the said Act include not only customs and usages in the ordinary sense which have obtained the force of law among Hindus in any local area, tribe, community, group or family, but also texts, rules and interpretation of Hindu Law which have been continuously and uniformly observed and have obtained the force of law among Hindus in any local area, tribe community, group or family.
11. In view of above observations and discussion, present appeal deserves to be Page 9 of 10 HC-NIC Page 9 of 10 Created On Sat Aug 13 04:35:44 IST 2016 C/SA/74/2000 CAV JUDGMENT allowed. It is accordingly allowed.
(Z.K.SAIYED, J.) KKS Page 10 of 10 HC-NIC Page 10 of 10 Created On Sat Aug 13 04:35:44 IST 2016