Madhya Pradesh High Court
Ratan Singh vs Rajaram on 27 May, 2020
Equivalent citations: AIR 2020 MADHYA PRADESH 135, AIRONLINE 2020 MP 655
Author: Vivek Rusia
Bench: Vivek Rusia
1
HIGH COURT OF MADHYA PRADESH: BENCH
AT INDORE
SINGLE BENCH: HON'BLE SHRI JUSTICE VIVEK RUSIA
FIRST APPEAL No.100/1993
RATAN SINGH - Appellant.
Vs.
RAJARAM - Respondent
Shri A.Qureshi learned counsel for the appellants.
Shri Harish Joshi learned counsel for the respondent
___________________________________________________
Whether approved for reporting: YES
JUDGMENT
(Delivered on 27.05.2020) Appellants/defendants have filed this appeal being aggrieved by the judgment and decree dated 26.02.1993 passed by Ist Additional District Judge, Ujjain in Civil Suit No.4A/1977 whereby the suit filed by respondent/plaintiff has been partly decreed.
Facts of the case are as under:
2. Respondent ( hereinafter referred to as "plaintiff") filed the suit for declaration of possession, title, permanent injunction, and mesne profit against the appellant ( hereinafter referred to as "defendants"). According to the plaintiff, his uncle late Late Jagannath was the owner of various agricultural lands and two houses. The description of all the land has been given in para-1 and the description of two houses has been given in para-2(a) &
(b) of the plaint (hereinafter referred to as 'suit property').
According to the plaintiff, Late Jagannath s/o Kuvarji was the 2 cousin brother of his natural father Kanhaiyalal. Late Jagannath, who had no issue, therefore, he adopted him on 07.06.1968 as per the customs prevailing in the Rajput Community. Thereafter, late Late Jagannath executed a registered adoption deed dated 25.01.1969 in the presence of two witnesses. After some time, some dispute arose between him and Late Jagannath and he started living with the defendants and sent a notice dated 18.06.1970 to him for withdrawing the adoption as well as cancelling the adoption deed. Thereafter, he got published a notice on 29.06.1970 in a daily newspaper to that effect, however, in both the notice and the news given in the newspaper he admitted that the plaintiff became son by way of adoption. The plaintiff, as well as Late Jagannathji, were belonging to the Rajput Community and as per the customs and usage prevailing in the Mevad Rajput community, there is no bar of adopting any person aged more than 15 years despite he being married as well, therefore, his adoption by Late Jagannath is valid and under section 15 of the Hindu Adoption and Maintenance Act,1956 such an adoption cannot be cancelled. The plaintiff further contended that by virtue of adoption he became a member of the Joint Hindu Family of Late Jagannathji and a co-parcener. Late Jagannath had inherited the ancestral property; therefore, by virtue of adoption he had got the equal right and title over the ancestral property i.e. the suit property. Late Jagannath had not only illegally cancelled the adoption deed vide notice dated 08.06.1970 but also sold the suit properties by way of sale deeds in favour of the defendants. Vide sale deed dated 11.11.1968 he sold the land survey No.69, area 16 bigha 5 biswa in favour of defendants No.2 & 3 for a sale consideration of Rs.6,000/-. Thereafter, vide two sale deeds dated 01.02.1969 he sold the land mentioned in para-2(a) and the land mentioned in para-1. Thereafter, vide another sale deed dated 24.02.1971 he sold the house mentioned in para-2(b). These 3 cumulative acts of late Late Jagannath gave him the cause of action for filing the present suit against the defendants. Plaintiff did not implead late Late Jagannath as defendant despite he was alive at the time of filing suit.
3. Initially, the plaintiff filed the suit as an indigent person on 02.07.1970. Learned Civil Judge obtained a report about the properties and the income of the plaintiff and after due inquiry vide order dated 09.01.1976 plaintiff has been denied the permission to file the suit as an indigent person and directed him to pay the ad-valorem Court fees. The plaintiff paid the ad- valorem Court fees and vide order dated 01.04.1977 the suit was registered as Regular Civil Suit. The defendants filed the written statement denying the averments made in the plaint. On the basis of the pleadings, learned Additional District Judge framed 14 issues for adjudication. The issue Nos.12, 13 & 14 were framed in respect of proper valuation of the suit and payment of ad- valorem Court fees. Vide order dated 07.09.1977 the learned A.D.J has decided all the aforesaid three issues as preliminary issues in favour of the plaintiff and held that he has properly valued the suit and paid the adequate amount of Court fees. The defendants challenged the aforesaid order by filing Civil Revision No.184/1978 before the High Court but vide order dated 11.09.1980 the High Court has dismissed the revision.
4. In support of the plaint, the plaintiff including himself has examined seven witnesses as PW/1 to PW/7 and got exhibited 22 documents as Ex.P/1 to P/22. In support of the written statement, the defendants have examined 3 witnesses and got exhibited four documents as Ex.D/1 to D/4.
5. The plaintiff assailed the aforesaid four sale deeds on the ground that (i) no sale consideration was paid to Late Jagannath,
(ii) all the suit properties are the ancestral properties and Late Jagannath and being a co-parcener he had no valid necessity to 4 execute the sale deeds,(iii) the plaintiff being a member of the Joint Hindu Family and co-parcener is having equal rights in the suit properties, (iv) the defendants No.2 & 3 are sons of Sunderbai, who is a real sister of Late Jagannath's wife (Sali) and the defendant No.1 is the brother of the wife of Late Jagannath. He has further raised the ground that once he had been adopted plaintiff as per the custom and conventions prevailing in the community he has acquired the status of his son and by virtue of section 15 of the Hindu Adoption and Maintenance Act such adoption cannot be cancelled, hence the sale deeds executed by Late Jagannath are not binding on him and liable to be declared as void.
6. The defendants came up with the plea that Late Jagannath did not validly adopt the plaintiff. At the time of adoption he was already married and more than 15 years of age, hence such an adoption is invalid under the Hindu Adoption and Maintenance Act,1956 hence not rights and titles were passed on to the plaintiff. Late Jagannath being the exclusive owner of the property had a right to sell the properties; hence the suit is liable to be dismissed. During the pendency of the suit Late Jagannath expired and accordingly the plaintiff amended his suit.
7. After appreciating the evidence came on record, learned Additional District Judge has held that on 07.06.1968 Late Jagannath validly adopted the plaintiff and got executed the registered adoption deed as well. While answering issue No.2, learned Court has held that under the Mevad Rajput Community there is a custom of adoption of the child more than 15 years despite his marriage. After adoption, the plaintiff became the son of Late Jagannath and started living with him. The suit property i.e. lands and houses were the ancestral properties of Late Jagannath and the plaintiff has become the member of the Joint Hindu Family and the coparcener of the family, therefore, he has 5 acquired similar rights and title over the suit property at par with late Late Jagannath. The sale deeds dated 11.11.1968, 01.02.1969, and 23.06.1970 are illegal and not binding on the plaintiff. Learned Additional District judge has party decreed the suit by holding that the plaintiff is only entitled to half share in the suit property by way of partition. It has further also been held that the plaintiff is entitled to a permanent injunction against defendant No.1 and entitled for mesne profit at the rate of Rs.2,500/- per year and Rs.25/- per month for the houses. Accordingly, vide judgment and decree dated 26.02.1993 the suit has been partly decreed.
8. Being aggrieved by the aforesaid judgment and decree, the defendants have filed the present first appeal. During the pendency of this appeal, the appellants have expired and their legal heirs have been brought on record.
9. Shri A.Qureshi learned counsel appearing for the appellants has assailed the judgment and decree mainly on the ground that though Late Jagannath had admitted the adoption of the plaintiff on 07.06.1968 and execution of adoption deed dated 25.01.1969 but the said adoption was not a valid adoption under the provisions of the Hindu Adoption and Maintenance Act,1956. At the time of adoption, the plaintiff was admittedly more than 15 years of age and enjoying the status of a married person, therefore, his adoption was not permissible under the law. Learned counsel has also raised the issue that before the adoption the natural father of the plaintiff did not obtain consent from his wife i.e. natural mother of the plaintiff which is mandatory under the provisions of the Act, on this ground also the trial Court has committed manifest error in declaring that the adoption as a valid adoption. The plaintiff has utterly failed to prove the customs and usage in the Mevar Rajpoot Community regarding the adoption of a married child aged who happens to be more than 15 years. The 6 witnesses examined by the plaintiff have given only oral evidence about certain past instances about a similar type of adoptions in the community but in the cross-examination, they have failed to give other important details and also admitted to the extent that they were not present at the time adoption, hence the finding recorded by the learned trial court about adoptions in the community of child aged more than 15 years and a married person is perverse and the impugned judgment and decree are liable to be reversed. It is further submitted that the adoption deed is not exclusive but virtually it is a WILL executed by Late Jagannath in which he has specifically stated that during his lifetime he would remain the owner and occupier of the suit property and after his death, the plaintiff would acquire the right and title, therefore, by virtue of the said adoption deed the plaintiff was only entitled to inherit the property only after the death of Late Jagannath m hence during the lifetime of late Late Jagannath, he had complete right to execute the sale deeds in favour of the defendants being an exclusive owner of the property. Even otherwise, the plaintiff has failed to establish that the properties are the ancestral properties of late Late Jagannath in which he is having share as coparcener by virtue of the Hindu Succession Act. The suit property was the self-acquired properties of late Late Jagannath, therefore, he had rightly executed the sale deeds in favour of the defendants.
10. Learned counsel for the appellant has further argued that the suit itself was not maintainable during the life of his adoptive father i.e. late Late Jagannath, therefore, learned trial Court has wrongly entertained the suit for partition, possession, and declaration of title during the lifetime of late Late Jagannath. Late Jagannath died in the year 1976 and at the time of execution of the sale deed, he was keeping good health and was competent to execute the sale deeds. Learned trial Court ought to have 7 dismissed the suit. In support of his contention, he has placed reliance over the judgment passed by the Apex Court in the case of Ratanlal vs. Sundarabai, AIR 2017 SC 5797 in which the Apex Court has held that under section 3(a) of the Act four ingredients are necessary for establishing a valid custom i.e. continuity, certainty, long uses, and reasonability. The custom of adoption of the married son has not been established, therefore, the adoption of the married son was invalid. He has also placed reliance over another judgment passed by the Apex Court in the case of Salekh Chand vs. Satya Gupta AIR 2008 SCW 4211 in which the Apex Court has held that custom is a rule which in a particular family or a particular class or community or a particular district has from long use, obtained the force of law. The solitary instance of adoption cannot amount to long usage and where a custom is repeatedly brought to the notice of Court, the Court may hold that the custom was introduced into law without the necessity of proof in each case. Shri Qureshi, learned counsel has further placed reliance over the judgment passed by the Division Bench of this Court in the case of Ramesh Kumar vs. Late Jagannath 2012 (4) MPLJ 356 in which it has been held that a party claiming adoption is required to prove the adoption by producing an adoption deed or establishing the adoption ceremony. The plaintiff has utterly failed to prove the adoption ceremony held on 07.06.1968 but said day was scheduled after 12th day of death of the wife of Late Jagannath and on the said date no adoption ceremony was proved to be held although all the villagers were invited for attending the rituals related to the death of the wife of Late Jagannath.
11. Shri Qureshi learned counsel has also placed reliance on the judgment passed by the Apex Court in the case of the Chairman, Bihar Rajya Vidyut Board vs. Chhathu Ram & others, AIR 1999 SCW 4874 where the adoption deed has been disbelieved 8 for want of signature of a person giving the child in adoption because in the present case also natural father of the plaintiff did not sign the adoption deed. In the case of Jai Singh vs. Shakuntala reported in 2002 AIR SCW 1280 the Apex Court has held that under section 16 the presumption about the registered adoption deed is rebuttable. Shri Qureshi has placed reliance over the judgment of a Single Bench in the case of Visram vs. Hari Ram reported in 1988 Revenue Nirnaya 372 in which it has been held that for establishing a customary adoption particulars should be given that the custom is ancient and invariable. The custom which is ancient and invariable should be established by clear and unambiguous evidence. The adoption deed is not valid if the consent of the wife has not been obtained. Shri Qureshi has also placed reliance over the judgment passed by the Apex Court in the case of Uttam vs. Saubhag Singh AIR 2016 SC 1169 in which it has been held that ancestral property ceases to be a joint property on the death of grandfather and devolves by section 8 of the Hindu Succession Act, 1956. The plaintiff/grandson, uncle, and widow of the deceased grandfather, etc. hold the property as a tenant-in-common. Even if the property of Late Jagannath was an ancestral property by virtue of section 8 of the Hindu Succession Act, the property was no more a joint family property. He has also placed reliance over the judgment passed by the Apex Court in the case of Sunderdas vs. Gajanan Rao reported in 1997 AIR SCW 757 in which it has been held that even in the case of ancestral property alienation by Karta or legal necessity the sale must be taken for the family necessity, hence although all the issues are answered in favour of the plaintiff, even then late Late Jagannath had the right to execute the sale deeds. At the time of execution of the sale deeds, he had no source of income, therefore, to fulfill his needs also he had rightly sold the suit property, hence no interference was needed 9 with sale deeds. In the case of Sushila Bai vs. Rajkumari 2017 (1) MPLJ 157 this Court has held that after the partition of Hindu Undivided Family (HUF), the holder of divided HUF property after the partition has unfettered right to deal with separated property. The interest or right of such a person shall devolve on the successor only after his death. If the holder of such property sells such property, the question of succession does not arise. A similar view has been taken in another case decided between Rajkumar Singh vs. Pushpender Singh by this Court which is reported in 2017 (4) MPLJ 311. In another case between Anokhilal vs. Sajjan Singh reported in 2009 Revenue Nirnaya 104 this Court has held that if the consent of natural mother is not established and the ceremony of giving and taken is also not proved the presumption under section 16 is not available. In the case of Chandrakanta vs. Ashok reported in 2002 (3) MPLJ 576 it has been held by this Court that after coming into force of the Hindu Succession Act the theory of birthright does not exist and the son gets a share in the property only after the death of his father.
12. Shri Qureshi, learned counsel further submitted that from the perusal of the WILL it reveals that Late Jagannath had executed a WILL in favour of the plaintiff that he will get the property only after his death, therefore, by virtue of adoption he did not get equal share in the suit property. The said will came into force only after the death of Late Jagannath but before that he had already sold the suit property. However, the other lands belonging to late Late Jagannath which are not the subject matter of sale deeds have already been mutated in the name of the plaintiff as admitted by him in his evidence, and defendants did not challenge the same and have no grievances for that mutation. In cross-examination, the plaintiff has admitted that in the revenue records and voter list his father's name is still mentioned 10 as Kanhaiyalal. He did not produce any legal and documentary evidence to establish that he has ever got recorded the name of Late Jagannath as his father in the official records, therefore, he has never used the name of Late Jagannath as his father, hence the entire judgment and decree is liable to be set aside and the plaint be dismissed.
13. Shri Joshi learned counsel appearing on behalf of respondent/plaintiff argued in support of judgment & decree and prayed for dismissal of this appeal.
14. I have considered the arguments advanced by the learned counsel appearing for the parties and perused the record.
15. The plaintiff filed the suit for declaration and permanent injunction based on his adoption by late Late Jagannath on 07.06.1968. According to the plaintiff, by virtue of the adoption he has become the son of Late Jagannath and also became coparcener of Joint Hindu Family's ancestral property, therefore, Late Jagannath had no right to sell the suit property to the defendants. According to the plaintiff, he was validly adopted by Late Jagannath on 07.06.1968 under the custom and usages prevailing in the Mevar Rajput Community. Thereafter, he executed the adoption deed and got it registered in the presence of two witnesses but under the influence of the defendants he started living with them and gave a notice to the plaintiff cancelling the adoption deed. He got published the notice in the newspaper also and in the meanwhile he executed four different sale deeds in favour of the defendants No.1 to 3. The defendants filed the written statement questioning the adoption made by Late Jagannath. According to the defendants, the said adoption was not valid under the provisions of the Hindu Adoption and Maintenance Act,1956 as at the time of adoption plaintiff was married and aged about more than 15 years of age, therefore, such an adoption cannot said to be a valid adoption. The plaintiff 11 pleaded and gave evidence to the effect that in the Mevad Rajput Community the adoption of a married person who is more than 15 years is permissible. Learned Additional District Judge after appreciating the evidence concluded that the adoption of the plaintiff is valid. So far the adoption of the plaintiff by Late Jagannath is concerned the same requires no deliberation because Late Jagannath himself vide notice dated 25.01.1969 and newspaper publication dated 18.06.1970 had admitted the adoption of the plaintiff but cancelled it. Therefore, there was an adoption by Late Jagannath of the plaintiff but the sole issue which requires consideration in this appeal is whether the said adoption was a valid one under the Hindu Adoption and Maintenance Act,1956?
16. The Hindu Adoption and Maintenance Act, 1956 came into force w.e.f. 21.12.1956. Section 3(a) defines the "custom" and "usage" and according to which any rule 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. Section 4 saves the provisions of the Act, 1956, and because of which any other law in force immediately before the commencement of this Act shall cease to apply to Hindus. As per section 4 (a) also 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 this Act shall cease to affect. Chapter-II deals with adoption. Section 6 provides the requisites for a valid adoption. Section 7 defines the capacity of a male Hindu to take in adoption. Section 9 defines the persons capable of giving in adoption and according to which no person except the father or mother or the guardian of a child shall have the capacity to give the child in adoption and as per the proviso, such right shall not be exercised by either of them save 12 with the consent of the mother. Section 10 provides that no person shall be capable of being taken in adoption unless four conditions are fulfilled viz. (i) he or she is a Hindu; (ii) he or she has not already been adopted; (iii) he or she has not been married and;
(iv) he or she has not completed the age of fifteen years. In the present case, there is no dispute about the applicability of provisions of section 10 (i) & (ii) but the dispute is only in respect of fulfillment of conditions No.10 (iii) & (iv) for the adoption of the plaintiff. According to which, no person who has not been married and not completed the age of fifteen years can be adopted but if there is a custom or usage applicable to the parties which permits persons who are married and completed the age of fifteen years can be taken in adoption. Section 11 provides other conditions for a valid adoption. Section 12 provides the effect of adoptions and according to which an adopted child shall be deemed to be the child of his or her adoptive father or mother for all purposes with effect from the date of the adoption. Section 13 gives the power and right to adoptive parents to dispose of their properties subject to any agreement to the contrary. In the present case, the issue which requires consideration is whether the adoption of the plaintiff by Late Jagannath can be said to be a valid adoption? It is settled law that a person who claims title on the basis of adoption must prove the adoption by evidence of giving and taking ceremony. Such a burden would be shifted to a person who challenges the adoption to disprove the adoption. Section 15 provides that a valid adoption not to be cancelled and section 16 gives the presumption as to registered documents relating to adoption, therefore, the defence of defendant about cancellation of the adoption by Late Jagannath vide notice Ex.P/2 & P/3 and cancellation deed are concerned is misguided by virtue of section 15 of the Hindu Adoption and Maintenance Act. So far the validity of Adoption deed Ex.P/1 is concerned, the Court shall 13 presume that the adoption has been made in compliance with the provisions of Act unless and until it is disproved. Admittedly, at the time of adoption, the plaintiff was more than 15 years of age and was married, therefore, the burden is on him to prove that in the Mevad Rajput Community, in which the plaintiff and his adoptive father belong to, under the custom and usage such adoption was permissible. The plaintiff gave only oral evidence in support of the custom and usage. He has neither produced any documentary evidence nor any earlier judgments delivered by any Court of law recognizing such custom and usage in the community. The Apex Court in the case of Salekh Chand (supra) has considered the proof of custom and long usage in the case of adoption. According to this judgment, a custom to be binding must derive its force from the fact that by long use it has obtained the force of law. A custom is a rule which in a particular family or a particular class or community or a particular district has from long use, obtained the force of law. 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, the custom is repeatedly brought to the notice of the Court, the Court may hold that the custom was introduced into law without necessity of proof in each case. The relevant portion of the said judgment is reproduced below:
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 14 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 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.
17. The plaintiff examined himself and other witnesses and gave various instances in which the adoption was made contrary to the provisions of section 10 (iii) & (iv) of the Act but on the basis of custom and usage. All the witnesses were not present at the time of said adoption and no documentary evidence has been produced in support of such oral evidence. The plaintiff did not produce any judgment of any Court in which the said custom has been recognized. In the case of Ratanlal (supra) again the Apex Court has considered the ingredients for establishing a valid custom in case of adoption. According to the Apex Court, under section 2
(a) of the Act, four ingredients are necessary for establishing a valid custom i.e. continuity, certainty, long uses, and reasonability. The Apex Court has further held that the appellant in that case has failed to produce any evidence to prove that such practice had attained the status of general custom prevalent among the concerned community. The custom on which the appellant was relying is a matter of proof and cannot be based on priori reasoning or logical and analogical deductions. It has been further held that when a custom is to be proved by judicial notice the relevant test would be to see if the custom has been acted upon by a Court in the same jurisdiction to the extent that to justify the Court which is asked to apply it. Paras-13 to 17 of the said judgment are reproduced below:
13. As per the settled law under Section 2(a) the Act, the following ingredients are necessary for establishing a valid custom -
a. Continuity.
b. Certainty.
15c. Long usage.
d. And reasonability.
As customs, when pleaded are mostly at variance with the general law, they should be strictly proved. Generally, there is a presumption that law prevails and when the claim of custom is against such general presumption, then, whoever sets up the plea of existence of any custom has to discharge the onus of proving it, with all its requisites to the satisfaction of the Court in a most clear and unambiguous manner. It should be noted that, there are many types of customs to name a few-general customs, local customs and tribal customs etc. and the burden of proof for establishing a type of custom depend on the type and the extent of usage. It must be shown that the alleged custom has the characteristics of a genuine custom viz., that it is accepted willfully as having force of law, and is not a mere practice more or less common. The acts required for the establishment of customary law ought to be plural, uniform and constant.
14. Custom evolves by conduct, and it is therefore a mistake to measure its validity solely by the element of express sanction accorded by courts of law. The characteristic of the great majority of customs is that they are essentially non-litigious in origin. They arise not from any conflict of rights adjusted, but from practices prompted by the convenience of society. A judicial decision recognizing a custom may be relevant, but these are not indispensable for its establishment. When a custom is to be proved by judicial notice, the relevant test would be to see if the custom has been acted upon by a court of superior or co- ordinate jurisdiction in the same jurisdiction to the extent that justifies the court, which is asked to apply it, in assuming that the persons or the class of persons concerned in that area look upon the same as binding in relation to circumstances similar to those under consideration. In this case at hand there was no pleading or proof which could justify that the above standards were met.
15. It would not be out of context to observe certain judicial decisions which throw some light on the issue raised in this case instant. In Rup Chand v. Jambu Prasad, (1910) ILR 32 All 247, Privy Council held that-
"The custom alleged in the pleading was this: " Among the Jains Adoption is no religious ceremony, and under the law or custom there is no restriction of age or marriage among them." And that appears to be the custom found by the High Court to exist. But upon the argument before their Lordships it was strenuously contended that the evidence in the present case, limited as it is to a comparatively small number of centers of Jain population, was insufficient to establish a custom so wide as this, and that no narrower custom was either alleged or proved.
In their Lordships' opinion there is great weight in these criticisms, enough to make the present case an unsatisfactory precedent if in any future instance fuller evidence regarding the 16 alleged custom should be forthcoming".
16. In Sheokuarbai v. Jeoraj, AIR 1921 PC 77, Privy Council observed that, among the Sitambari Jains the widow of a sonless Jain can legally adopt to him a son without any express or implied authority from her deceased husband to make an adoption, and the adopted son may at the time of his adoption be a grown-up and married man. The only ceremony to the validity of such an adoption is the giving and taking of the adopted son.
17. It is very much evident that the appellant in this case has failed to produce any evidence to prove that such practice has attained the status of general custom prevalent among the concerned community. Custom, on which the appellant is relying, is a matter of proof and cannot be based on a priori reasoning or logical and analogical deductions, as sought to be canvassed by the appellant herein. Hence the issue is answered against the appellant.
18. In the case of Atluri Brahmanandam v. Anne Sai Bapuji, (2010) 14 SCC 466 the Apex Court has recognised that there is a custom among the members of the "Kamma" caste to adopt a boy of more than 15 years old and that such custom is valid on the basis of two earlier decisions given by High Court of A.P. But in this case the plaintiff has failed to establish that custom in Mewar Rajput community has been recognised by the competent court. Relevant paras are reproduced below:-.
10. The aforesaid deed of adoption was produced in evidence and the same was duly proved in the trial by the evidence led by PW 1, the respondent. We have carefully scrutinised the cross-examination of the said witness. In the entire cross-examination, no challenge was made by the appellant herein either to the legality of the said document or to the validity of the same. Therefore, the said registered adoption deed went unrebutted and unchallenged. We have already referred to the recitals in the said document which is a registered document and according to the recitals therein, the respondent was legally and validly adopted by the adoptive father, late Anne Seetharamaiah and that such adoption even beyond the age of 15 years is permissible and recognised in the "Kamma" community of Andhra Pradesh. All these factors also go unrebutted and unchallenged.
11. Section 10 and Section 16 of the Hindu Adoptions and Maintenance Act, 1956 of which reference was made during the course of arguments read as follows:
"10. Persons who may be adopted.--No person shall be capable of being taken in adoption unless the following conditions are fulfilled, namely--
(i)-(iii) * * *
(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 17 adoption.
* * *
16. Presumption as to registered documents relating to adoption.--
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 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."
12. We are concerned for the purpose of this case with clause (iv) of Section 10 which provides that a person to be adopted should not have completed the age of 15 years. But there is also an exception provided therein to the aforesaid required qualification which provides that if there is a custom or usage applicable to the parties permitting persons who have completed the age of 15 years being taken in adoption, such a person could also be validly adopted. On the other hand, the effect and the implication of Section 16 of the Act is that if there is any document purporting to record an adoption made and is signed by the person giving as well as the person taking the child in adoption and is registered under any law for the time being in force and if it is produced in any court, the court would presume that the adoption has been made in compliance with the provisions of the Act unless and until it is disproved.
13. There is no denial of the fact in the present case that the respondent was more than 15 years of age at the time of his adoption. But the respondent has relied upon the exception provided in Section 10(iv) and has proved by leading cogent and reliable evidence like Ext. A-8 that there is a custom in the "Kamma" community of Andhra Pradesh for adoption of a boy even above the age of 15 years. Therefore, the aforesaid exception which is engrafted in the same part of the provision of Section 10 of the Act was satisfied. Since the aforesaid custom and aforesaid adoption was also recorded in a registered deed of adoption, the Court has to presume that the adoption has been made in compliance with the provisions of the Act, since the respondent has utterly failed to challenge the said evidence and also to disprove the aforesaid adoption.
14. Reference has also been made to a Division Bench decision of the Andhra Pradesh High Court reported in N. Hanumantha Rao v. N. Hanumayya. In the said decision, the Division Bench has recognised that there is a custom among the members of the "Kamma" caste to adopt a boy of more than 15 years old and that such custom is valid. The said decision rendered by a Division Bench in 1964 has stood the test of time and has remained binding till date.
15. In Ujagar Singh v. Jeo this Court has held that the ordinary rule is that all customs general or otherwise have to be proved, but under Section 57 of the Evidence Act, 1872 nothing needs to be proved of which the court can take judicial notice. It was also held that when a custom has been repeatedly recognised by the courts, it is blended into the law of land and proof of the same would become unnecessary under Section 57 of the Evidence Act, 1872.
16. The aforesaid decision is squarely applicable to the facts and circumstances of the present case. The Andhra Pradesh High Court has recognised such a custom among the "Kamma" community of Andhra 18 Pradesh of taking in adoption of a person even above the age of 15 years of age and has held the same to be legal and valid.
17. In view of the above discussion, we find no infirmity at all in the findings of the trial court which were affirmed by the High Court that the adoption of the respondent by late Anne Seetharamaiah is legal and valid. We, therefore, find no merit in this appeal which is dismissed but we leave the parties to bear their own costs.
19. Hence, the plaintiff's claim is solely based on the oral evidence and there is no corroboration by any judgment passed by any competent Court recognized by such custom and usage, therefore, the trial Court has committed an error of law by upholding the adoption of the plaintiff as a valid one.
20. Plaintiff has placed heavy reliance over Ex.P/1, which is an adoption deed, and according to him by virtue of the said adoption he has become a member of the Joint Hindu Family and a coparcener of the properties of Late Jagannath. Although Ex.P/1 is titled as an adoption deed admitting the adoption of the plaintiff by Late Jagannath, however, this deed is in two parts. The first part is concerning the admission of adoption made earlier and the second part is about the right and title over the properties of the adoptive father i.e. Late Jagannath. In para-2 of the adoption deed, he has specifically mentioned that during his lifetime he would remain the exclusive owner and occupier of the suit property and after his death, the adoptive son Rajaram would acquire the title and possession of the suit property. Although the said adoption deed has been cancelled which is not permissible as held in earlier paragraphs by virtue of section 15 of the Hindu Adoption and Maintenance Act,1956.But by virtue of such adoption and adoption deed, the plaintiff did not acquire any right and title over all his immovable assets because the same was retained by the adoptive father with him till his death and before his death, he had disposed of the suit property to the defendants by way of four sale deeds. Hence the plaintiff did not become the coparcener of the suit property of late Jagannath even after 19 adoption and execution of adoption deed.
21. The defendants have also challenged that the adoption deed has not been signed by the father of Rajaram which was also required to be signed by him. Admittedly, there is no sign of the natural father of the plaintiff i.e. Kanhaiyalal and mother Janakbai in the adoption deed which is also a requirement of law. In the case of the Chairman, Bihar Rajya Vidyut Board (supra) the Apex Court has held that if the deed of adoption is not signed by any person giving the child in adoption such adoption cannot be said to be a valid adoption. The extract taken from Chairman, Bihar Rajya Vidyut Board v. Chhathu Ram reported in (1999) 5 SCC 673, are as under:-
4. The respondent claimed that he was the adopted son on the basis of a deed of adoption dated 28-2-1989. It is said to have been executed seven months before the deceased died. In the impugned judgment, the High Court appears to have proceeded on the basis of a presumption relating to the validity of the adoption deed under Section 16 of the Hindu Adoptions and Maintenance Act, 1956.
Under Section 16 of the Act, if any document registered under any law for the time being in force is produced before any court purporting to record the adoption made and is signed by the person giving and the person taking the child in 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. In the present case, the deed of adoption is not signed by any person giving the child in adoption. The copy which is produced before us does not indicate that this is a registered deed of adoption. Therefore, no presumption under Section 16 could have been drawn relating to the validity of the adoption. There are no facts on record showing whether on the date of adoption, the respondent was under the age of 15 years. There are also no facts on record to show whether the husband of the deceased was alive on the date of the adoption. If so, the adoption would have had to be made by the husband with the consent of the deceased. In the absence of any material, we are, therefore, not pronouncing on the validity or otherwise of the adoption. Therefore, the basis on which the High Court has proceeded cannot be sustained and the appellants cannot be faulted for not acting on the basis of the adoption deed.
(Emphasised supplied)
22. The appellants have also assailed the adoption deed on the ground that before giving the plaintiff for adoption the natural father did not seek consent from his wife. In the entire plaint as 20 well as in evidence, there is no pleading about the said consent obtained from the mother of the plaintiff which is also a mandatory requirement under the law. Section 9 defines the persons capable of giving in adoption and according to which no person except the father or mother or the guardian of a child shall have the capacity to give the child in adoption and as per the proviso, such right shall not be exercised by either of them save with the consent of the mother. There is absolutely no evidence on record and pleadings to that effect that before the adoption of the plaintiff, natural father Kanhaiyalal took consent from his wife, therefore, such adoption cannot be said to be a valid adoption in the eye of law, hence the impugned judgment and decree are unsustainable in law.
23. Appellants have also assailed the judgment and decree on the ground that the plaintiff filed the suit during the lifetime of his father. After the Hindu Succession Act,1956 came into force, Late Jagannath had become the absolute owner of the property and during his lifetime he got an exclusive right to alienate the property by way of WILL or transfer, hence during his lifetime the son cannot claim the right and title over the property. In the case of Uttam (supra) the Apex Court has held that the ancestral property ceases to be a joint family property on the death of the grandfather and devolves by section 8 of the Hindu Succession Act. The other coparceners i.e. plaintiff, the grandson, uncle, widow, etc. hold the property as a tenant in common. This Court also in the case of Sushila Bai (supra), Rajkumar Singh (supra), & Chandrakanta (supra) has repeatedly held that the Karta of the family can alienate the ancestral property and the theory of birthright does not exist after coming into force of the Hindu Succession Act,1965. The son gets the property only after the death of his father, therefore, in view of the aforesaid law the present suit during the lifetime of Late Jagannath was not 21 maintainable.
24. Appellants have also raised the ground that there is no evidence on record that the property of Late Jagannath was ancestral. Learned trial Court has recorded the findings that the suit property was ancestral property by placing reliance over the Exs.P/8 & P/9 in which the name of the father of Late Jagannath is recorded as Krishak and with two others. The suit properties are agricultural lands and two houses. No evidence has been adduced to establish that Late Jagannath got two houses from his ancestors. Exhibits P/9 & P/10 are kishtbandi khatoni only in respect of certain agricultural lands in which the name of the father of Late Jagannath was recorded jointly along with three others. Exhibits P/9 & P/10 are only Kistbandi Khatouni and no title documents have been filed in respect of ownership of Late Jagannath as well as of his father, therefore, the evidence came on record to establish that the entire suit property is the ancestral property cannot be said to be conclusive evidence. The entire suit property of Late Jagannath has wrongly been held as ancestral property. If Late Jagannath was an exclusive owner of the property then during his lifetime he had the right to sell the same. The plaintiff did not get any rights and title over the suit property during his lifetime. Even in the so-called adoption deed also, Late Jagannath kept the title and possession with him over the suit property during his lifetime and the claim for the title was liable to be transferred only after his death.
25. That applicability of sections 12 and 13 of the Hindu Adoption and Maintenance Act,1956 has neither been considered by the learned Additional District judge nor argued by the learned counsel appearing for the appellants. The Apex court in the case of Dina Ji v. Daddi, reported in (1990) 1 SCC 1 has considered it which equally applies in the facts of this case. The relevant paras are reproduced below:-
226. Section 12 of the Hindu Adoptions and Maintenance Act reads as follows:
"12. Effects of adoption.) An adopted child shall be deemed to be the child of his or her adoptive father or mother for all purposes with effect from the date of the adoption and from such date all the ties of the child in the family of his or her birth shall be deemed to be severed and replaced by those created by the adoption in the adoptive family:
Provided that:
(a) the child cannot marry any person whom he or she could not have married if he or she had continued in the family of his or her birth;
(b) any property which vested in the adopted child before the adoption shall continue to vest in such person subject to the obligations, if any, attaching to the ownership of such property, including the obligation to maintain relatives in the family of his or her birth;
(c) the adopted child shall not divest any person of any estate which vested in him or her before the adoption."
7. Proviso (c) of this section departs from the Hindu general law and makes it clear that the adopted child shall not divest any person of any estate which has vested in him or her before the adoption. It is clear that in the present case, Smt. Yashoda Bai who was the limited owner of the property after the death of her husband and after Hindu Succession Act came into force, has become an absolute owner and therefore the property of her husband vested in her and therefore merely by adopting a child she could not be deprived of any of her rights in the property. The adoption would come into play and the adopted child could get the rights for which he is entitled after her death as is clear from the scheme of Section 12 proviso (c).
8. Section 13 of the Hindu Adoptions and Maintenance Act reads:
"13. Right of adoptive parents to dispose of their properties.-- Subject to any agreement to the contrary, an adoption does not deprive the adoptive father or mother of the power to dispose of his or her property by transfer inter vivos or by will."
9. This section enacts that when the parties intend to limit the operation of proviso (c) to Section 12, it is open to them by an agreement, and it appears that what she included in the present deed of adoption was an agreement to the contrary as contemplated in Section 13 of the Hindu Adoptions and Maintenance Act.
In view of the above in this case also during the lifetime of late Jagannath the plaintiff did not get any share and title in his properties and he had an absolute right to deal with it.
26. In view of the foregoing discussion, the impugned judgment and decree dated 26.02.1993 passed by 1st Additional District Judge, Ujjain in Civil Suit No.4A/1977 being unsustainable is hereby set aside. Consequently, the appeal is allowed and the suit 23 is dismissed. Decree be drawn and record be sent back to the concerned court.
No order as to costs.
(VIVEK RUSIA)
JUDGE
hk/ Digitally signed by Hari Kumar
Nair
Date: 2020.05.28 14:28:02 +05'30'