Karnataka High Court
Smt Parvathamma W/O Late Veeranna vs Shivakumar @ Shivanna S/O Late Rame ... on 10 February, 2014
Equivalent citations: AIR 2014 KARNATAKA 104, 2014 (4) AIR KANT HCR 8, (2015) 1 KANT LJ 134, (2014) 2 KCCR 1145, (2014) 2 ICC 203
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 10TH DAY OF FEBRUARY 2014
BEFORE
THE HON'BLE MR.JUSTICE K.N.KESHAVANARAYANA
R.S.A.No.1934 OF 2006 (A)
BETWEEN:
SMT.PARVATHAMMA
AGED ABOUT 55 YEARS
W/O. LATE VEERANNA
RESIDENT OF HARIYAPPANAHALLI
KORA HOBLI
TUMKUR TALUK & DISTRICT-572 101
... APPELLANT
[BY SRI.B.K.MANJUNATH , ADV.,]
AND:
1. SHIVAKUMAR @ SHIVANNA
AGED ABOUT 29 YEARS
S/O. LATE RAME GOWDA
RESIDENT OF HARIYAPPANAHALLI
KORA HOBLI
TUMKUR TALUK & DISTRICT-572 101.
2. SIDDAMMA,
AGED ABOUT 60 YEARS
W/O. LATE RAME GOWDA
RESIDENT OF BRAMHASANDRA
KORA HOBLI
TUMKUR TALUK-572 101.
...RESPONDENTS
[BY SRI.G.A.K.GOWDA, ADV FOR C/R-1;
RESPONDENT No.2 IS SERVED]
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THIS R.S.A IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 29.03.2006
PASSED IN R.A.No.514/2004 (OLD No.19/1997) ON THE FILE
OF THE PRL.DISTRICT JUDGE, TUMKUR, ALLOWING THE
APPEAL AND SET ASIDING THE JUDGMENT AND DECREE
DATED 13.03.1997 PASSED IN O.S.NO.277/1989 ON THE
FILE OF THE PRL.MUNSIFF AND JMFC., TUMKUR.
THIS R.S.A COMING FOR DICTATING JUDGMENT ON
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal by the plaintiff in O.S.No.277/1989 on the file of the then Principal Munsiff and JMFC, Tumkur is directed against the divergent judgment dated 29.03.2006 passed by the Principal District Judge, Tumkur in R.A.No.514/2004 allowing the said appeal filed by the respondent-defendants by setting aside the judgment and decree dated 13.03.1997, passed by the Trial Court in the aforesaid suit decreeing the said suit and consequently, dismissing the suit filed by her for declaration.
2. During the course of this judgment, the parties herein would be referred to with reference to their ranking in the trial Court.
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3. Plaintiff filed the suit in O.S.No.277/1989 for the reliefs that the first defendant is not the adopted son of the plaintiff and her deceased husband Veeranna, as the adoption itself is invalid and consequently, to cancel the adoption deed dated 27.05.1987, registered as document No.30/87-88 in Book No.4, Volume 34 at Page 1, in the office of Sub-Registrar, Tumkur and to intimate the office of Registrar about the cancellation. The plaintiff inter alia contended that she and defendant No.2 are the sisters, while defendant No.1 is the natural son of defendant No.2; that the plaintiff and her husband Veeranna owned a house property in Hariyappanahalli and also landed properties in Bramhasandra Village as well as Katenahalli Village of Tumkur Taluk; that the plaintiff and her deceased husband had only one son who died unmarried during the year 1987 at the age of 18 or 19 years; that when the plaintiff and her husband were in mental agony on account of the loss of their son, one B.C.Adveshaiah and the defendants came to her and her husband requesting them to take defendant No.1 as an assistant to 4 the family of the plaintiff and her husband; that the plaintiff and her husband were illiterates, as such, did not know how to read and write; that taking advantage of the circumstance that the plaintiff and her husband were in deep sorrow as the result of the untimely death of their son, the said B.C.Adveshaiah got a document executed by the plaintiff and her husband alleging that it is a document to help the plaintiff and her husband by defendant No.1; that the defendant No.1 with his wife used to reside with the plaintiff and her husband; that during January 1989, the defendant No.1 commanded the plaintiff and her husband to hand over the management of the family to him on the ground that he is their adopted son and that the adoption is evidenced by a registered adoption deed dated 27.05.1987; that the plaintiff and her husband being innocent and illiterate got the contents of deed read over and found that it was an adoption deed, which has come into existence fraudulently at the instance of the said B.C.Adveshaiah, who is shown to be one of the attesters of the document; that since as on the 5 date of the alleged adoption of defendant No.1, he was aged more than 17 years, he could not have been adopted in view of Section 10 of the Hindu Adoption and Maintenance Act, 1956 (for short 'the Act'); that he could not have also been adopted by the plaintiff and her husband prior to 1987 as by that date the plaintiff had a son who died at the age of 18 or 19 years during 1987, as such, the alleged adoption of defendant No.1 is invalid and therefore, it is liable to be cancelled; that no rights have been derived by defendant No.1 as a family member of the plaintiff and her husband pursuant to the alleged adoption; that no adoption ceremony was conducted either on the date of the alleged adoption deed or prior to it; that subsequent to January 1989, defendant No.1 taking a hostile view against the plaintiff and her husband murdered the plaintiff's husband on 24.09.1989 in his paddy thrashing floor situated in their land at Bramhasandra Village and in connection with the said case, defendant No.1 is in judicial custody; that the followers of defendant No.1 including his mother- 6 defendant No.2 are now trying to interfere with plaintiff's peaceful possession and enjoyment of the assets left behind by her husband asserting that defendant No.1 has succeeded to the properties under the adoption deed. Therefore, it has become necessary for the plaintiff to seek relief of declaration that the defendant No.1 is not her adopted son and for the cancellation of the alleged adoption deed.
4. Both the defendants appeared before the Trial Court and filed their written statement denying the case of the plaintiff.
5. In their written statement, the defendants admitted inter se relationship between the parties as stated in the plaint. They contended that the plaintiff as well as her late husband adopted defendant No.1, as such, the plaintiff and her husband are the adoptive parents of defendant No.1. They denied the allegation that B.C.Adveshaiah got the registered document executed by the plaintiff and her husband on the pretext that it was 7 the document to help the plaintiff and her husband by defendant No.1. They denied the further allegation that during January 1989, defendant No.1 demanded the plaintiff and her husband to hand over the management of the family properties. They contended the adoption of defendant No.1 took place after the death of the son of plaintiff and her husband. They denied the allegation that at the time of adoption, defendant No.1 was aged more than 17 years. According to them, at the time of adoption, defendant No.1 was not more than 15 years. They contended that out of love and affection and taking into consideration the relationship of defendant No.1 with the plaintiff and her husband, they voluntarily took the defendant No.1 in adoption under a registered deed dated 27.05.1987 and it was acted upon. They contended that there was a usage in the family of the defendant No.1 to adopt a boy or girl aged more than 15 years, as such, the adoption is not invalid on that ground. According to them, all the necessary ceremonies with regard to adoption have been performed, as such, the adoption is 8 valid. They denied the allegation that the plaintiff and her husband were innocent and were not aware that the document executed by them was an adoption deed. They contended by virtue of adoption, defendant No.1 has derived all the rights and title over the properties left behind by his adoptive father. They denied the further allegation that subsequent to January 1989, defendant No.1 took hostile view against the plaintiff and her husband. They denied the allegation that defendant No.1 committed murder of husband of the plaintiff. They contended that false FIR came to be filed by the plaintiff against defendant No.1 at the instance and instigation of the persons who were inimically disposed towards him. They further contended that since, defendant No.1 inherited the properties left behind by his adoptive father, question of he interfering with the alleged possession of the property by the plaintiff does not arise and that the defendant No.1 is in possession and enjoyment of the properties left behind by the husband of the plaintiff in his own rights as adopted son. They contended that there is 9 absolutely no cause of action for the suit, as such; the suit is liable to be dismissed.
6. Subsequently, the plaintiff amended the plaint by deleting a sentence in paragraphs 3 and 4 of the plaint. The sum and substance of the amendment was as on the date of the alleged adoption deed their natural son was still alive and he died on 10.06.1987. To this amended plaint, the defendants filed additional written statement denying the said pleading.
7. In the light of the pleadings of the parties, the trial court framed the following issues:
(i) Whether the plaintiff proves that the alleged suit registered adoption deed dated 27.05.1987 is false, fraudulent and invalid?
(ii) Whether the plaintiff further proves that the 1st defendant is not at all the alleged adopted son of herself and that of her deceased husband one Veeranna?10
(iii) Whether the necessary directions to the Sub-Registrar, Tumkur has to be issued for cancellation of the suit registered deed dated 27.05.1987 in book No.4 Vol 34 and Page No.1 during 1987-88?
(iv) Whether the plaintiff is entitled to the reliefs sought?
(v) What order or decree?
8. During the trial, the plaintiff got herself examined as PW1 and relied on documentary evidence Exs.P1 to P6. The defendant No.1 examined himself as DW1 and in addition, he examined B.C.Adveshaiah as DW2 and two more witnesses as DWs 3 and 4. He got marked Exs.D1 to D4.
9. After hearing both the sides, and on appreciation of the oral and documentary evidence, the Trial Court by the judgment and decree dated 13.03.1997, answered the issue Nos.1, 2 and 4 in the affirmative and issue No.3 as does not survive for consideration and consequently, held 11 that the plaintiff is entitled for declaration as sought. The Trial Court held that the alleged adoption is proved to be fraudulent: that as on the date of the alleged adoption, defendant No.1 was more than 15 years and since, the defendants have failed to prove any custom or usage existing in the community, to which the parties belonged to, in taking adoption of a person aged more than 15 years, the adoption is invalid in the light of the provision of Section 10 (iv) of the Act and therefore, defendant No.1 has not derived any right as an adopted son of the plaintiff and her husband. In that view of the matter, the Trial Court decreed the suit declaring that the defendant No.1 is not the adopted son of the plaintiff and her husband and that the adoption deed dated 27.05.1987 is invalid. Aggrieved by the said judgment and decree, defendant No.1 filed appeal in R.A.No.514/04 before the District Court at Tumkur. The lower Appellate Court after hearing both the sides, foormulated the following points for consideration:
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(i) Whether the Trial Court was justified in holding that there was no valid adoption of defendant No.1 by the plaintiff in 1987?
(ii) Whether the trial Court is justified in decreeing the suit?
10. On re-appreciation of the oral as well as documentary evidence, the lower appellate Court answered both the points in the negative holding that the Trial Court has committed error in coming to the conclusions that the adoption deed is fraudulent and that the adoption is invalid in view of Clause (iv) of Section 10 of the Act. The lower appellate Court held that though the evidence on record establishes that defendant No.1 was aged more than 15 years as on the date of the adoption deed Ex.D1, the evidence on record establishes custom and usage in taking a boy aged more than 15 years in adoption and therefore, the adoption of defendant No.1 aged more than 15 years was not invalid. The lower appellate Court further observed that in view of Section 16 13 of the Act, there is a presumption as to the validity of the adoption and since, the adoption is evidenced by a registered document, in the absence of any acceptable evidence placed by the plaintiff to rebut the said presumption, the adoption is valid and since defendant No.1 has proved the custom and usage regarding adoption of boy aged more than 15 years, the Trial Court is not justified in decreeing the suit of the plaintiff. In that view of the matter, the lower Appellate Court allowed the appeal, set aside the judgment and decree passed by the Trial Court and consequently, dismissed the suit of the plaintiff. Aggrieved by the said judgment of the lower appellate Court, the plaintiff is in appeal before this Court.
11. At the time of admission on 26.03.2009, the following substantial questions of law were framed for consideration:
(i) Whether the lower appellate Court has held the document at Ex.D1 to be proved 14 contrary to the other evidence which is available on record?
(ii) Whether the manner of consideration of the provisions contained in Section 10 of the Hindu Adoption and Maintenance Act, 1956 is contrary to law and therefore, as to whether the lower Appellate Court has committed error in reversing the judgment and decree passed by the Trial Court?
Subsequently, on 10.09.2012, the following two more additional Substantial Questions of Law were framed for consideration in this appeal:
(i) Whether the adoption of the first respondent who was more than 15 years old on the date of his adoption was not invalid in terms of Section 10 of the Hindu Adoptions and Maintenance Act, 1956, and whether it was saved by Exception (IV) thereto?
(ii) Whether the statement in the adoption deed would be sufficient to prove custom and/or usage?
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12. I have heard Mr.B.K.Manjunath, learned counsel appearing for the appellant and Mr.G.Anjan Kumar Gowda for the contesting respondent No.1-defendant No.1. The defendant No.2 Smt.Siddamma though served with notice of this appeal has remained absent.
13. At the hearing, learned counsel appearing on both the sides fairly submitted that the second Substantial Question of Law framed on 29.06.2009 and the two additional Substantial Questions of Law framed on 10.09.2012, be considered and answered by this Court. Therefore, the aforesaid three points are taken up for consideration.
14. The following facts emerge from the record:
The plaintiff and defendant No.2 are sisters, while defendant No.1 is the son of defendant No.2. Veeranna-
husband of plaintiff died on 21.05.1989. The plaintiff and her husband had a natural son by name Somashekaraiah and he died at his age of about 18 or 19 years. Though 16 there is some controversy as to the exact date of the death of Somashekaraiah, the natural son of the plaintiff, both the Courts below have concurrently held that he died on 30.04.1987. There is no challenge as to this concurrent finding recorded by the Courts below. From this, it is clear that as on the purported date of the adoption deed-
Ex.D1, the natural son of the plaintiff was not alive. Similarly, though defendant No.1 denied the allegation contained in the plaint that as on the purported date of the adoption deed-Ex.D1, he was aged more than 15 years, there has been a concurrent finding of the Courts below that as on the purported dated of Ex.D1, the defendant No.1 was aged more than 15 years and there has been no challenge to the said concurrent finding. Though the plaintiff alleged that the adoption deed-Ex.D1 is fraudulent and has come into existence by misrepresentation and without making the plaintiff and her husband understand as to the purport and effect of its contents, since they were illiterates, the lower appellate Court on re-appreciation of the evidence on record has 17 recorded a finding of fact that the plaintiff has failed to establish the said allegations.
15. Keeping these admitted and proved facts; let me proceed to consider the questions of law raised for consideration.
Section 5 (1) of the Act declares that any adoption by or to a Hindu except in accordance with the provisions contained in this Chapter, and any adoption made in contravention of the provisions shall be void.
Section 5 (2) of the Act further declares that an adoption which is void shall neither create any rights in the adoptive family in favor of any person which he or she could not have acquired except by reason of the adoption, nor destroy the rights of any person in the family of his or her birth.
Section 10 of the Act states as to who can be adopted. According to this Section no person shall be 18 capable of being taken in adoption unless the following conditions are fulfilled, namely,-
(i) he or she is 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.
16. Reading of clause (iv) of Section 10, makes it clear that a person aged more than fifteen years cannot be taken in adoption. However, exception to this Rule is existence of a custom or usage applicable to the parties permitting adoption of persons who have completed the 19 age of fifteen years. If the person adopted does not fulfill any of the conditions contained in Clauses (i) to (iv) of Section 10 of the Act, such adoption, in view of the declaration made under Section 5 (1) of the Act, would be void and as per Sub-Section (2) of Section 5 of the Act, no right flows in favour of the adopted person pursuant to such adoption.
17. Reading of clause (iv) of Section 10 of the Act would further indicate that proving the existence of custom or usage, which permits adoption of persons aged more than 15 years, is on the person who asserts existence of such custom or usage and on that basis, seeks to validate the adoption. Section 16 of the Act no doubt raises a presumption as to the registered documents relating to adoption. According to this Section whenever any document registered under any law for the time being in force is produced before any court purporting to record an adoption made and is signed by the person giving and the person taking the child in 20 adoption, the court shall presume that the adoption has been made in compliance with the provisions of this Act unless and until it is disproved. Thus, when the factum of adoption is evidenced by a registered document, as per Section 16 of the Act, there would be a presumption as to the fact that the adoption has been made in compliance of provisions of the Act. Of course, the said presumption is a rebuttable one and the party trying to invalidate the adoption will have to prove the contrary and disprove that there has been no compliance of the provisions of the Act.
18. Reading of the judgment of the lower Appellate Court, indicates that the learned District Judge has mainly proceeded on the ground that Ex.D1 is a registered document and that in view of Section 16 of the Act, there is a presumption in favour of defendant No.1 that the adoption has been made in compliance of all the requirements of the Act and since, no evidence is placed on record by the plaintiff to show that there is non- compliance of any provisions of the Act, the Trial Court is 21 not justified in invalidating the adoption. In my considered opinion, the lower appellate Court has lost sight of the fact that defendant No.1 was shown to be aged more than 15 years as on the date of Ex.D1 and even if there is a presumption under Section 16 of the Act as to the compliance of all the provisions of the Act, it is still the burden on the part of defendant No.1 to prove that his adoption though aged more than 15 years as on that date, was valid on account of the existence of custom and usage. For this view of mine, I draw support from the decision of Madras High Court in the case of Mahalingam vs. Kannayyan & another reported in AIR 1990 Madras
333.
19. In Mahalingam's case (supra) while considering the presumption under Section 16 of the Act and also the provisions of Clause (iv) of Section 10 of the Act, it has been held that when the admitted position was that the age of the person adopted was over fifteen years, then it could only come under the exception, and the validity of 22 such adoption would be upheld only when the custom or usage as applicable to the parties permitting the adoption of a person over the age of fifteen years is proved and established, for the simple reason, with regard to an exception, there could not be a presumption, legal or otherwise and therefore, the fact that the document recording an adoption was made would not presume existence of the custom and usage on the ground that the adoption must have been made in compliance of the provisions and conditions set out under Section 16 of the Act. Therefore, Section 16 of the Act cannot be invoked to arrive at such a presumption. It is necessary to extract the conclusions found in para No.5, which reads as under:
"5. Xxx xxx xxx The implication of S. 16 of the Act is: If there is any document purporting to record an adoption made and it is signed by the person giving and the person taking the child in adoption, and that document is registered under any law for the time being in force and it is produced before any Court, the Court 23 shall presume that the adoption has been made in compliance with the provisions of the Act, unless and until it is disproved. When S. 16 speaks about compliance with provisions of the Act, it has reference to the general requirements under the Act with regard to a valid adoption. The general requirements take in what has been laid down in S.
10.CI.(iv)thereof sets down the requirement regarding the age of the person to be adopted as fifteen years. If the conditions as per S.16 are satisfied, there could be a presumption also as to the satisfaction of the requirement of the age being fifteen years. But when the admitted position is that the age of the person adopted was over fifteen years, then it could only come under the exception, and the validity of such adoption could be upheld only when the custom or usage applicable to parties permitting the adoption of a person over the age of fifteen years is proved and established. The simple reason is, with regard to an exception, there could not be a presumption, legal or otherwise. Exception is a departure from the normal and general requirements. An exception takes the case 24 from the purview of general requirements. An exception must be proved and it cannot be presumed. When an exception is engrafted in the main part of the provision to the effect that on satisfaction of certain conditions the general requirements need not be invoked, the onus in regard to such exceptional conditions is on the person who pleads them. An exception must be strictly construed. The presumption under S. 16 does not cover the case of an exception to the general requirements of the provisions of the Act.
That is how, S.16 must be construed. Otherwise, it will lead to anomalous results. Even if there is no satisfaction of the general requirement regarding age, Court will be called upon to presume the exception. This could not be the intendment of the legal presumption under S. 16. There must be plea and proof of the exception under custom or usage spoken to in CI.(iv) of S. 10. Unless that is made out, the exception cannot rule. There could not be a presumption of such custom or usage. Even by a bare reading of S. 16, it is not possible to spell out a theory that it dispenses with pleading and proof in the case 25 of an exception under S. 10(iv) of the Act. As already noted, one of the four qualifications set out in S. 10 of the Act is that the person, who is to be adopted should not have completed the age of fifteen years. If there should be an exception as contemplated in that clause, certainly, there has got to be a pleading and proof of the same. By having resort to S. 16 of the Act, it is not possible to dispense with the said pleading and proof.S.16 has no relevance at all with regard to the exception set forth in S. 10(iv) of the Act."
20. In the case on hand, the proved factum is that as on the date of Ex.D1, defendant No.1 was aged 20 years 11 months and 9 days. The very recital in Ex.D1 itself indicates that as on that date, defendant No.1 was aged about 17 years. Thus, the plaintiff has established that as on the date of Ex.D1, Defendant was aged more than 15 years. Therefore, the presumption under Section 16 of the Act stood rebutted, as such, it is for defendant No.1 to show that his adoption was saved by exception as stated in clause (iv) of Section 10 of the Act. As observed by the 26 Madras High Court in Mahalingam's case, it is for the person who seeks to be covered by exception in clause (iv) of Section 10 of the Act, to plead about existence of such custom or usage and then to prove the same by acceptable evidence. In Salekh Chand vs. Satya Gupta (2008) 1 SCC 119 , the Apex Court at Para No.22 has ruled that "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 xxx xx ". In the case on hand, except stating in the written statement that there is usage in the family of defendant No.1 to take adoption of a boy or girl aged more than 15 years, there is no pleading as to the existence of custom.
21. As could be seen from the judgment of the lower appellate Court, the learned Appellate Judge has recorded a finding that DW-2- B.C.Adveshaiah, in his oral evidence has stated that there is a custom and usage in their community, which permits such adoption and therefore, proceeded to hold that the custom and usage is 27 established and on that ground the lower Appellate Court has held that the adoption is valid. As noticed supra, there is no pleading as to the existence of custom, nor any pleading regarding instances of such adoption. Except the oral say of DW2 that there existed a custom and usage, no other evidence is placed on record by defendant No.1 to establish existence of such custom or usage. The expression 'custom and usage' is defined under Clause (a) of Section 3 of the Act. According to clause (a) of Section 3:
unless the context otherwise requires 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 provided further that, in the case of a rule applicable only to a family, it has not been discontinued by the family;
Therefore, it is necessary to establish the practice of taking persons aged more than 15 years in adoption having been continuously and uniformly observed for a 28 long time. In this regard, the learned counsel for the defendant drew my attention to Section 48 of the Evidence Act. According to Section 48 of the Act When the Court has to form an opinion as to the existence of any general custom or right, the opinions, as to the existence of such custom or right, of persons who would be likely to know of its existence if it existed, are relevant. Explanation to the said Section states that the expression "general custom or right" includes customs or rights common to any considerable class of persons
22. Relying on Section 48 of the Evidence Act, the learned counsel for the defendant No.1, contended that the evidence of DW2 that there existed a custom in their community, which permitted taking of persons aged more than 15 years in adoption would be relevant and therefore, the lower appellate Court is justified in placing reliance on the evidence of DW2 and recording the finding about the validity of the adoption. It is also his contention that the evidence of DW2 in this regard, has not been challenged in 29 the cross-examination, as such, it has remained unchallenged and there has been no contrary evidence to show that no such custom or usage prevailed in the community. Therefore, he contended that the findings recorded by the lower appellate Court is based on the evidence and the said finding being a finding of fact, cannot be interfered by this Court sitting in second appeal. I find no substance in these contentions for the reason that the mere say of DW2 that there existed a custom or usage in their community, which permitted adoption of person aged more than 15 years would not prove such custom or usage since, he has not come out with any instances of such adoption either in his family or in the family of the parties to Ex.D1 or in any family belonging to that community. Such custom or usage can be established only by instances of such nature. In the case of Salekh Chand's case (supra) (the Apex Court has held thus:
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"26. A custom, in order to be binding must derive its force from the fact that by long usage it as 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 as the established governing rule of a particular locality.
27. 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."31
23. In this regard reference may also be made to provisions of Section 13 of Evidence Act, which sets out facts relevant when right or custom is in question. Section 13 of the Evidence Act reads as under:
"13. Facts relevant when right or custom is in question Where the question is as to the existence of any right or custom, the following facts are relevant.
(a) Any transaction by which the right or custom in question was created, claimed, modified, recognized, asserted, or denied, or which was inconsistent with its existence;
(b) Particular instances in which the right or custom was claimed, recognized, or exercised, or in which its exercise was disputed, asserted or departed from."
24. As noticed supra, the evidence of DW2 as to the existence of custom and usage is not supported by any public record of custom nor by any instance of similar 32 nature in the same village or in other neighbouring villages amongst the persons belonging to same community. Attention of this Court was drawn to an old decision of Madras High Court in the case of Rajah Somasekhara Royal and Ors. Vs. Rajah Sugutoor Immadi Mahadeva reported in (1930) 59 MLJ 151. In this decision, the Court was considering the validity of an adoption of a married man. This decision was rendered prior to the coming into force of the Act, which codified the law relating to adoption and maintenance among Hindus. The Court in this decision has referred to the old text governing the Hindus relating to adoption. The parties to this reported decision were also belonging to lingayath community. They hailed from North Canara area, which was earlier within the Madras Presidency, but later it was attached to Bombay presidency. In this decision, the Madras High Court has referred to the customs prevailing in the Lingayath community living in Madras Presidency as well as the Mysore Area. Admittedly, the parties in the case on hand also reside in the old Mysore area. In the 33 said decision, the Madras High Court has referred to the description as to the Lingayath community as summarized by Thurston in his castes and Tribes of Southern India, Vol. iv at page 236 wherein it is referred that though the sacred thread is not worn by the lingayaths, a ceremony called Deeksha ought to be performed about their 8th year, but as in the case of Upanayam it is often performed much later. It is further noticed in the said decision that the lingayaths have got Agamas or sacred books which are of primary authority. One of such books is Vathulagama which deals with adoption and the Agamas are the dialogues between Siva their chief god and his consort Parvathi. It is further noticed therein that with regard to adoption, it is stated in vathulagama that the wise should take a boy possessing all the limbs, clean, endowed with beauty, born of the same gotra, having a liking to good conduct, aged five years excluding the eldest, of good conduct, highly intelligent, of sweet speech, tender hearted.
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25. It is further observed therein that, in so far as the age limit is concerned, this age corresponds with the age given in Dattaka Chandrika. As regards the age of five years, custom has relaxed that rule and the evidence of the plaintiffs' witnesses in that case was that adoption can be made before the Deeksha ceremony is performed. Of course in that case, the Court has proceeded to consider the question as to whether the custom has relaxed the rule that an adoption cannot be made after a person is married.
26. Referring to the judgment of the Chief Court of Mysore, wherein it has been held that though there is no express authority on the point, having regard to the fact that the questions of age, marriage, etc., are determined in the texts on the consideration of certain rites, such as Upanayanam, marriage, etc., having to be performed to the individual to be adopted in the adopted family, there is strong reason for holding that marriage is a bar in spite of the fact that the person concerned was a widower at the 35 time of adoption, the Madras High Court proceeded to hold that though Vathulagama, which, as the witness state, is binding on the Lingayats, fixed the fifth year as the proper age for a boy to be adopted, and though amongst the Lingayats, and other communities adoption may by custom take place at a later age, there is no reason to suppose that there is a custom among the Lingayats in the Madras Presidency or in Mysore or in North Canara which was part of the Madras Presidency and Mysore, to so extend the age as to render valid by custom the adoption of a married man.
27. Thus, from the aforesaid decisions, it is clear that amongst Lingayaths, residing in this State, there was no custom prevailing prior to the coming into force the Act in 1956, which permitted adoption of a boy aged more than 15 years. There was no judicially recognized custom in that regard.
28. The learned counsel for the defendant placing reliance on the judgment of the apex court in the case of 36 Kondiba Rama Papal @ Shirke (dead) by his heirs & LRs. And another Vs. Narayan Kondiba Papal reported in AIR 1991 SC 1180 contended that the adoption of a person aged more than 15 years is judicially recognized. Reading of the said decision indicates that the apex court in that case has considered the case arising from Bombay area which is governed by 'Mayukha'. In fact, in the reported decision of the Madras High Court referred to supra, it is noticed that in Bombay Presidency Mayukha is followed as a paramount authority which permits the adoption of even the married man.
29. In Kondiba Rama Papal @ Shirke's case referred to supra, the person who was adopted was aged about 22 years as on the date of adoption. The apex court has noticed that even though there is a difference of opinion between various schools as to the age when a boy may be adopted, so far as Bombay State is concerned, it is observed that the position is well settled in view of more than one judicial decision. The apex court referring to 37 Mulla's Hindu Law, 14th Edition at page 550, wherein it is stated that in the Bombay State, a person may be adopted at any age though he may be older than the adopter and though he may be married and have children, the adoption is not invalid although it took place after the thread ceremony of the boy was performed. Therefore, the apex court held that thus the custom is judicially recognized in the Bombay State as regards adoption of a child at any age. It is further held therein that once the custom is judicially recognized, it is not required to be independently proved in subsequent cases. It is further noticed by the apex court that in that case, evidence was led with reference to two instances of adoption of persons belonging to the same caste as the plaintiff in that case, where a child was adopted at the age above 15 years after the Act came into force. Thus, it was observed that in view of the settled position in law as judicially recognized, if the factum of adoption is established, its validity cannot be challenged on the ground that the adopted child had completed the age of 15 years at the time of adoption. 38 This decision is referable only to the custom that existed in Bombay area governed by 'Mayukha'.
30. In the case on hand, the first defendant who set up existence of a custom and usage regarding adoption of a boy aged more than 15 years has not shown that such a custom has been judicially recognized. As noticed supra, except a sentence in the evidence of DW2 that in their community there is a custom permitting adoption of boy aged more than 15 years, there is absolutely no other evidence to indicate the said custom or usage. As discussed supra, the first defendant has not placed on record any instances of such adoption having taken place in their community nor it is shown that such a custom amongst the Lingayaths is judicially recognized. Therefore, having regard to the discussions made above, I am of the considered opinion that first defendant has utterly failed to establish the existence of a custom or usage as applicable to the community to which the parties to the suit belong to, recognizing adoption of a boy aged 39 more than 15 years. Therefore, the adoption as evidenced by Ex.D1 of the first defendant who was admittedly more than 15 years as on that date was in violation and was contrary to Section 10 (iv) of the Act. Therefore, it is void as declared by Section 5 of the Act.
31. Learned Advocate for defendant No.1, contended that the very recital in the document Ex.D1 indicates existence of custom and usage and also compliance of all requirements, therefore the lower appellate court has not committed any error in reversing the judgment of Trial Court.
32. The relevant recitals in Ex.D1 reads as under:
"CzÁV MAzÀ£Éà ¥ÁnðAiÀiÁzÀ £À£ÀUÉ UÀAqÀÄ, ºÉtÄÚ ¸ÀAvÁ£À«®èzÀÝjAzÀ®Æ ªÀÄÄAzÉ £À£Àß «²µÀÖ D¹ÛUÀ½UÀÆ ºÀPÀÄÌzÁgÀgÀÄ E®èzÉ EgÀĪÀÅzÀjAzÀ®Æ, £À£Àß PÉêÀ® ºÀwÛgÀ ¸ÀA§A¢üPÀgÁzÀ ªÉÄîÌAqÀ ¹zÀÞªÀÄä£ÀªÀgÀ JgÀqÀ£Éà ªÀÄUÀ ¸ÀĪÀiÁgÀÄ 17 ªÀµÀðzÀ ¨Á®PÀ ²ªÀPÀĪÀiÁgÀ JA§ ºÀÄqÀÄUÀ£À£ÀÄß aPÀÌA¢¤AzÀ®Æ, £Á£Éà ¸ÁQPÉÆAqÀÄ «zÁå¨sÁå¸À ªÀiÁr¹gÀĪÀÅzÀjAzÀ®Æ F ºÀÄqÀÄUÀ£À£ÀÄß F »AzÉ £ÀªÀÄä ªÀÄvÀ ¥ÀzÀÞw ¥ÀæPÁgÀ ±Á¸ÉÆÛÃç PÀÛªÁV zÀvÀÄÛ ¹éÃPÁgÀ 40 ªÀiÁrPÉÆArgÀÄvÉÛêÉ. FUÀ MAzÀÄ jf¸ÀÖgÀÄ zÀvÀÄÛ ¥ÀvÀæ ªÀiÁrPÉƼÀî¨ÉÃPÉAzÀÄ C©ü¥ÁæAiÀÄ¥ÀlÄÖ F ¢ªÀ¸À F zÀvÀÄÛ ¥ÀvÀæ ªÀiÁrPÉÆArgÀÄvÉÛêÉ."
33. The aforesaid recitals indicate that under Ex.D1, the adoption did not take place. According to the aforesaid recitals, the adoptive family had no natural son or daughter, therefore, they said to have brought up defendant No.1 from his childhood and got him educated and he had been adopted as their son and since, it was thought prudent that a registered document should come into existence to evidence the said adoption, the parties have executed the deed of adoption. The entire evidence on record with regard to the ceremonies of adoption of giving and taking of the boy relate to the ceremonies said to have been done about 8 to 10 days after the death of the natural son of the plaintiff. However, there is neither pleading nor evidence as to any ceremony for giving and taking of the boy earlier as stated in Ex.D1. The expressions '£ÀªÀÄä ªÀÄvÀ ¥ÀzÀÞw ¥ÀæPÁgÀ ±Á¸ÉÆÛçÃPÀÛªÁV zÀvÀÄÛ ¹éÃPÁgÀ 41 ªÀiÁrPÉÆArgÀÄvÉÛãÉ' is referable to the factum of adoption of defendant No.1 much prior to Ex.D1 on the ground that he was brought up by the adoptive parents from his childhood and provided him the education since they had no natural son or daughter. However, the recital in Ex.D1 that the adoptive parents had no natural son or daughter is incorrect, as admittedly they had a natural son. Of course as noticed supra, there was some controversy as to the date of his death. However, from the oral evidence as observed by both the Courts below, it is proved that the natural son died on 30.04.1987. Nevertheless, the fact remains that the recital in Ex.D1 that the plaintiff and her husband had no natural son or daughter is a false statement.
34. Reading of the recitals extracted above, in my considered opinion leads to an inference that such a false statement appears to have been made only to lay emphasis that defendant No.1 was looked after and was brought up by the plaintiff and her husband from his 42 childhood and they provided him education and took him in adoption as their son.
35. Recital in Ex.D1, in my considered opinion, by itself does not indicate that there existed a custom or usage applicable to the parties with regard to taking a boy aged more than 15 years in adoption. The recitals in Ex.D1 that '£ÀªÀÄä ªÀÄvÀ ¥ÀzÀÞw ¥ÀæPÁgÀ ±Á¸ÉÆÛçÃPÀÛªÁV zÀvÀÄÛ ¹éÃPÁgÀ ªÀiÁrPÉÆArgÀÄvÉÛã'É is referable only to the observance of rituals for effecting the adoption. The said recital on its plain reading does not admit existence of custom or usage recognizing adoption of boy aged more than 15 years. Therefore, the said recital in Ex.D1 cannot be taken as a proof of existence of any such custom or usage. No doubt, as contended by the learned counsel for the defendants, in Ex.D1 itself it has been shown that defendant No.1 was aged 17 years. However, the argument of learned counsel for defendant No.1 that the reference to the age of defendant No.1 in Ex.D1 read with the recital that the adoption has been made in accordance 43 with the community custom, would indicate that the parties knew very well about permissibility of taking adoption of a boy more than 15 years, cannot be accepted. Existence of a custom or usage cannot be presumed on the basis of a recital in a deed. Such custom or usage will have to be established by the party asserting the same. Therefore, it is for the defendant No.1 to establish that there existed a custom or usage in their community which permitted adoption of a person aged more than 15 years. From the discussions made above, it is clear that, the defendant No.1 has failed to plead and prove the existence of custom or usage as sated in clause
(iv) of Section 10 of the Act.
36. Therefore, I am of the considered opinion that the alleged adoption of first defendant as evidenced by Ex.D1 is violative of Section 10 of the Act, as such, it is void under Section 5(1) of the Act. Therefore, in terms of sub-Section (2) of Section 5 of the Act, no right flows to the first defendant pursuant to such adoption. The 44 learned Appellate Judge, in my considered opinion has failed to consider this aspect of the matter and the finding of the learned Appellate Judge that the adoption of first defendant aged more than 15 years as on the date of Ex.D1 is valid, is contrary to the law and is not based on any acceptable evidence. When a finding of the lower court is not based on any acceptable evidence and if such findings are contrary to the provisions of law, it would be a perverse finding, amenable for correction by the High Court even in the Second Appeal. In the case of Hero Vinoth (Minor) vs. Seshammal reported in 2006 AIR SCW 2833, the Apex Court has summarized the principles relating to interference under Section 100 of CPC as under
in paragraph 24;
"24. The principles relating to Section 100 CPC, relevant for this case, may be summarized thus:-
(i) An inference of fact from the recitals or contents of a document is a question of fact. But the legal effect of the terms of a document is a question of 45 law. Construction of a document involving the application of any principle of law, is also a question of law.
Therefore, when there is misconstruction of a document or wrong application of a principle of law in construing a document, it gives rise to a question of law.
ii) The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents, and, involves a debatable legal issue. A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the court below has decided the matter, either 46 ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law.
iii) The general rule is that High Court will not interfere with concurrent findings of the Courts below. But it is not an absolute rule. Some of the well recognized exceptions are where (i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. When we refer to 'decision based on no evidence', it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding."
47
37. This view has been reiterated in several subsequent decisions. The manner, in which the lower Appellate Court has considered the provisions contained in Section 10 of the Act, is also contrary to the provisions contained in the very section. Therefore, the judgment of the Lower Appellate Court reversing the judgment and decree passed by the Trial Court and dismissing the suit is highly perverse and illegal and therefore, it is liable to be set aside. The judgment of the Trial Court being sound and reasonable, having regard to the evidence on record and also the provisions of law, is required to be restored. The learned Appellate Judge has not assigned cogent and acceptable reasons for setting aside the findings recorded by the Trial Court. In this view of the matter, the judgment of the lower Appellate Court is liable to be set aside and the judgment of the Trial Court decreeing the suit of the plaintiff is required to be restored. The substantial questions of law framed are answered accordingly.
48
38. Accordingly, the Appeal is allowed. The judgment and decree dated 29.3.2006 passed by the Principal District Judge; Tumkur in R.A No.514/2004 is hereby set aside. The judgment and decree dated 13.3.1997 decreeing the suit of the plaintiff in OS No.277/1989 by the Prl. Munsiff & JMFC, Tumkur, is restored. Having regard to the close relationship between the parties, I direct the parties to bear their own costs throughout.
SD/-
JUDGE SS* (Pages 01 to 40) PL* (Pages 41 to 48)