Jharkhand High Court
Nr.Soren & Ors. vs Ranjan Murmu & Ors. on 12 December, 2008
Equivalent citations: AIR 2009 JHARKHAND 23, 2009 (2) AKAR (NOC) 299 (JHA) (2009) 1 JCR 262 (JHA), (2009) 1 JCR 262 (JHA)
Author: M. Y. Eqbal
Bench: M. Y. Eqbal
APPEAL FROM APPELLATE DECREE NO.292 OF 1987(P)
------
(Against the judgment and decree dated 21.7.1987 passed by 3rd Addl. District
Judge, Dumka in Title Appeal No. 04 of 1983 / 31 of 1985 affirming the judgment
and decree dated 10.12.1982 passed by 2nd Additional Subordinate Judge, Dumka
in Title Suit No. 34 of 1978 / 24 of 1982.)
Narayan Soren and others... ... ... Appellants.
Versus
Ranjan Murmu and others ... ... ... Respondents.
------
For the Appellants: Mr. Rajiv Sharma
For the Respondents: M/s. Dilip Kumar Prasad, S.K.Mahto &
K.K.Mishra
------
PRESENT
THE HON'BLE MR. JUSTICE M. Y. EQBAL
------
Reserved on: 25.11.2008 Pronounced on: 12th December, 2008
JUDGMENT
M.Y. Eqbal, J. This second appeal is directed against the judgment and decree
dated 21.7.87 passed by 3rd Additional District Judge, Dumka in Title
Appeal No.4/83 affirming the judgment and decree passed by 2nd
Additional Subordinate Judge, Dumka in Title Suit No.34/78 whereby the
suit filed by the plaintiffs-appellants was dismissed.
2. At the time of admission of the appeal the following substantial
question of law was formulated:
"Whether the courts below have erred in law in placing the onus on
the plaintiff to prove that there was no custom of adoption by
females among the Santhals?"
3. The facts of the case lie in a narrow compass.
The plaintiffs-appellants filed the aforementioned suit for
declaring that defendant no. 3, Rani Hansda, wife of Sundar Soren has no
right to adoption and Balak Murmu is not the adopted son of Rani Hansda.
The plaintiffs' case is that the plaintiff no.1 is the agnate of Chandar Soren,
husband of Rani Hansda. Other defendants are members of the same
family being agnates and claiming inheritance in the property of Sundar
Soren. Sundar Soren died leaving behind his widow Rani Hansda, who
allegedly was maintained by the plaintiffs. During life time Chandar Soren
alleged to have executed a Jimmanama on 5th March, 64 with respect to his
entire properties and since then the plaintiffs-appellants are in possession
of the property of Sundar Soren. It is alleged that taking advantage of
complicity and oldness of Rani Hansda, the defendant no.1 who is
2 S.A.No.292 of 1987
grandson of the common ancestors, got a deed of adoption executed on
17.5.77. The plaintiffs' case is that in Santhal community a widow is not entitled to adopt any child and if her husband died issueless the properties are inherited by other surviving agnates.
4. The defendants contested the suit by filing written statement on the ground that according to Santhal custom a widow is also competent to adopt a child. It is pleaded that formal ceremony like Bonga Tola and Nim Da Mari were duly performed. Subsequently a deed of adoption was also registered. The defendants' case is that after the death of Sundar Soren the plaintiffs started creating trouble, which resulted in initiation of criminal proceedings and after the plaintiffs failed in their attempt, the instant suit has been filed.
5. The trial court framed five issues including the issue with regard to Santhal custom of widow adopting a child. The trial Court recorded a finding that a widow can adopt a child and all ceremonies were performed while defendant no.1 was adopted by the widow. The trial Court, after considering both oral and documentary evidence, recorded a finding that a Santhal widow is fully competent to adopt a child. The Court further recorded a finding that all customs and ceremonies were performed at the time of taking delivery of a child from the mother.
6. Aggrieved by the said judgment and decree passed by the trial court, the plaintiffs-appellants preferred appeal before the District Judge, Dumka being Title Appeal No. 4/83. The appellate court after re- appreciation of the entire evidence affirmed the finding of the trial court and held that the defendants by adducing positive evidence proved that a Santhal widow is competent to adopt a child in absence of her husband.
7. Mr. Rajiv Sharma, learned counsel appearing for the appellants, assailed the impugned judgment and decree mainly on the ground that the courts below have wrongly shifted the onus upon the plaintiffs to prove by evidence that the widow had not adopted the child. Learned counsel submitted that a Santhal widow has no legal right under the custom to adopt a son.
8. Before deciding the substantial question of law, I would like to discuss the customary law of Santhal and the right of female under their customary law with regard to adoption, although the finding has been conclusively recorded by two courts. It is worth to mention here that the 3 S.A.No.292 of 1987 counsel for the appellants has confined his argument on the question of law formulated at the time of admission of the appeal.
9. The Santhals are justly described as the largest, most integrated and possibly the most resilient tribe in eastern India. They made the Santhal Parganas their home early in the colonial period and spilled over the Gangas into Purnea. They have played a crucial role as a reclaimers of land and excellent at the transplantation of paddy.
10. W.G. Archer, a renowned officer during British period, spent most of his administrative career in Bihar. He stayed many years in Santhal Parganas as Deputy Commissioner and as a Special Officer of judicial department to record the Santhal laws. He also became Joint Editor with Verrier Elwin of Men in India founded by S.C. Roy. Archer had close link with scholars and administrator who were active in the area of tribal studies. He has spent many years to know the customs and other history of Santhals. In the introductory chapter of adoption among the Santhal Communities, the author, W.G. Archer, in his book Tribal Laws and Justice, said:
"IN HIS paper on Santa! rules of succession, Campbell says:
'Adoption is not practised by the Santals' and Bodding while dissenting remarks, 'I have heard of one or two instances'. Sir Robert Russell, on the other hand, made enquiries in 1924 from 'an assembly of parganaits in the Dumka Damin, the parganait of Amrapara, the Sardars of Sikaripara, Rajbandh, Banspahari, Masanjor and a number of others' and found that such a custom existed from very early times. At the present day there is no uncertainty for the practice is not only a Santal custom but is a common expedient in Santal life.
The most usual situation which results in adoption is when a Santal has no son. 'It is for love and joy that we want sons' said Salku Soren, deshmanjhi of Durgapur. But beyond this delight in male children is the knowledge that a son is the main support in old age. A Santa! ploughs so long as his health and strength remain but sooner or later these must end and then if he has no son there is only the decrepitude of old age, its weak helplessness, the plight of 'an old man, a dull head among windy spaces'.
It is in circumstances such as these that a Santal often resorts to adoption--sometimes only to secure a son but more usually to gain a prop in his fading years."
IV. THE PERMANENT WIDOW IN A JOINT FAMILY If this is the position when a widow remarries what are her rights if she does not take another husband but remains a widow? In such cases she is virtually a substitute for her husband. She steps into his place, acts as his representative and exercises almost all his rights and duties.
If her husband was joint with his brothers she will continue to live 4 S.A.No.292 of 1987 in the family and the situation will not differ materially from what it was in her husband's lifetime. Her right to maintenance will continue and if her husband's family neglects her without cause she can demand sufficient land to keep her. If there is a complete family partition the widow and her children will get the share which would have gone to her husband had he been alive.
11. So far adoption made by a widow, the author says:-
"In almost all cases adoption is done only by men but there is no bar to a widow adopting a son or daughter 'for her dead husband'. As in all cases of adoption village approval is a necessary condition but such cases almost always occur only when there are no agnates to oppose or where the husband's brothers fully approve. Moreover it is generally accepted that if a widow so adopts she will do so from her husband's greater family. There have so far been no cases in which the village has overruled the agnates and has allowed adoption by a widow against their will.
The widow of Sital Soren of Raghunathpur adopted the son of her dead husband's brother's son.
In Jhanjhko the widow of Bhondo Murmu took a son of her husband's brother as posu putra and the same was done by the widow of Tilak Marandi of Dahua and the widow of Jiban Soren of Litipara.
In a case from Birgaon the widow of Chandra Soren adopted an outsider. Her dead husband had left no agnates and the boy was adopted from outside the family with the approval of the village."
12. In an article "Contextual Need for Change in Santhal Customary Law of Inheritance", the author of the article, Mr. Ramesh Chandra has gone in detail and said: -
"As mentioned earlier, the Santhal customary law provides for movement of landed property in the male line. Other immoveable property also gets restricted at that level. As per local understanding, there is no codified law in this respect for Santhali women. However, according to Gantzer's Settlement Report (1935) a clear picture of customary law is visible. A few of expressions derived from Santhali oral traditions to give some understanding about the position of women in Santhali society are "Jinis Knako"
meaning 'they are things' indicating women as object and their position not more than any other object owned by Santhali men and she is taken as an appendage along with other commodities.
"Sashhamrao Hivali" meaning 'wife is the property of her husband'.
The Santhals are patriarchal and patrilineal people. The inheritance of property moves in male line; in exceptional cases it can also go in hands of females, but only temporarily. In case of inheritance of landed property the Santhali customary law does not provide safeguarding the interest of landed property. However, some westernized interpretation of Santhal Customary Law is available from Gantzer's Settlement Report which portrays the customary law favouring Santhal women.
According to Santhal tribal law only males can inherit land, some jointly succeed their father. if brothers are co-sharer in a holding 5 S.A.No.292 of 1987 and one brother dies without issue, the surviving brothers and the sons of predeceased brothers inherit his share. The Hindu or Muhammadan laws of succession do not apply to Santhals. Santhal tribal law is quite definite in not allowing females to inherit. But this law is gradually undergoing a change.
As regards widows, the entries have tendered to be even less uniform. There have been not a few cases in which no objection has been raised to the recording of the widow in her own right, and in such cases, she has been described as wife of so and so. As in the case of Hindu widow, this entry is intended to indicate that she has inherited the property from her late husband and that when she dies it will revert to those male relations who would ordinarily have inherited it at once under Santhal Law. In other cases, the widow, like the daughter, has been recorded only in the remarks column as a Khorposhdar for certain plots sufficient to maintain her until her death.
For the sake of interpretation of ongoing practice of customary law it may clearly be said that in relation to their landed property the situation is that where a Santhal woman has been recorded as wife of so and so, she holds a widow's right as if she were a Hindu widow or she may be taken to have full rights of inheritance somewhat in the manner of a woman inheriting Stridhan property under the Hindu Law. The question of succession in such cases still remains in doubt as they system is new, but there seems little doubt that the property should revert to her nearest male relatives.
No transfer by a Raiyat of his right in his holding or any portion thereof, by sale, gift, mortgage, will, lease or any other contract or agreement, expressed or implied, shall be valid unless the right to transfer has been recorded in the record of rights, and then only to the extent to which such right is so recorded."
13. In the final report on the 'Revision Survey and Settlement Operations in the district of Sonthal Parganas, 1922-35', J.F. Gantzer said:
-
"45. Females, - Entry of Women's names in the records,--The relevant portion of Khanapuri Rule no. 46 reads as follows:--
"If a female is the cultivator of a field her name should be accompanied by that of her father if she inherited the property from him, or by that of her husband if she inherited from him. It may be assumed, therefore, that the revision settlement records have been prepared in accordance with the prescribed rule, but in the absence of any definite finding on the point at issue embodied in a dispute list or other order passed by an Assistant Settlement Officer, the value to be attached to the entry of a father's name or a husband's name, as the case may be, is open to challenge when the exact nature of the woman's title is under consideration in a subsequent suit. The position may be summed up in Mr. Dain's observation in his judgment dated 9th April 1934 in Commissioner's Santal Parganas Settlement Appeal no. 128 of 1933-34 :--
"When a woman holds land, it has not been the practice in the Santal Parganas to make any entry indicating the exact, nature of the right by which she holds it and any observations made on the subject at this stage would not bind a court before which the issue may be directly raised at some future time.'' 6 S.A.No.292 of 1987
46. Santal Tribal Law of Inheritance.- According to Santal tribal law only males can inherit land. Sons jointly succeed their father. If brothers are co-sharers in a holding and one brother dies without issue, the surviving brothers and the sons of predeceased brothers inherit his share per stripes.
The Hindu or Muhammadan laws of succession do not apply to Santals Santal tribal law is quite definite in not allowing females to inherit, but this law is gradually undergoing a change and the situation created by this change is discussed in a separate paragraph below. According to tribal custom, it is permissible for a man with daughters and no sons to take a son-in-law into his house as a Gharjamai and to give him thereby all the rights of a son. The adoption of a Gharjamai is a formal proceeding leaving no room for doubt as to the father-in-law's intention and resulting in the Gharjamai cutting off all connection with his own family as far as his rights to property are concerned, and becoming to all intents and purposes the son of his father-in-law. When such adoption has been formally made the Gharjamai can succeed as a son and oust other male relatives. It is of importance to note that a Gharjamai can be adopted only by a deliberate public act in the presence of the village community at the time of the marriage, and that according to tribal law a father-in-law cannot at a later stage convert an ordinary son-in-law into a Gharjamai. A widow cannot in any circumstances, create a Gharjamai. There is a distinction between a Gharjamai and a Ghardi-jamai. In both cases the bridal party goes from the bride's house to fetch the prospective husband and no dowry (pon) is given, but whereas the gharjamai is adopted permanently as a son, a ghardi-jamai merely lives and labours in his wife's home for a previously stipulated period which may extend up to five years. He thereby works off the debt due on account of the non-payment of pon. A ghardi-jamai is not entitled to get anything from his wife's family, but the woman herself is usually given a small present (arpa) annually at the harvest season, and this is utilized for setting up her new home. At the expiry of the stipulated period, the Ghardi-jamai is free and may return to his own home with wife."
14. In the final report on the 'Survey and Settlement Operations in the district of Sonthal Parganas, 1898-1907', H. McPherson said: -
"One of the most interesting sections of Mr. Bompas' note is that which sets forth Sonthal customary law on the subject of partition, inheritance and marriage, subjects which perhaps in view of clause
(c), section 23 of Regulation III of 1872, should have been dealt with more fully in the settlement record-of-rights of Sonthal villages than has been done. As the principles set forth by Mr. Bompas in his note were followed in disputes about inheritance that arose during the settlement in Sonthal villages, it will make this report more complete if I quote below those portions of Mr. Bompas' note which are pertinent to the subject.
"(1) Sonthal Partition. - When there are many grandsons or the sons do not live happily together, the father and mother will make a partition, a panchayat will be called and the father will divide all the land and cattle and will keep one share for himself;
and the son with whom the parents live, will retain possession of their share during their lifetime. When the father and mother cannot 7 S.A.No.292 of 1987 get about, the sons will have to support them, as, when they were little and could not support themselves, the father and mother supported them with great trouble. Daughters get no share. Often at marriage they give them one calf each; and so at a partition if there are unmarried daughters they get one calf each. At a partition unmarried sons get a double share of the live stock, one share for their marriage expenses. Cattle which the daughters-in-law got from their father and brothers and father-in-law at the time of marriage will not be divided but the cattle which the sons got at marriage will be divided.
"(2) Inheritance. - If a woman dies while her sons are unmarried, they cannot demand a partition even if their father takes a second wife, but they can do so if they like after marriage. The father gets one share and the sons one share each. If the second wife has no children, when the father dies, the sons of the first wife can take the share their father got, but if they take it they will have to pay for the funeral of their step-mother.
"If a woman is left a widow without sons, her husband's father or brothers will get the whole property. The woman will get only one calf, one bandi of paddy, one bati and one cloth, and will return to her parents' house. Some men under these circumstances will keep their elder brother's widow and not let her return to her parents. This is considered very praiseworthy. The brother who keeps the widow will get his own share of the deceased brother's property, he will not take the whole.
"If a widow has daughters, their paternal grandfather and uncles will take charge of mother and daughters, and the property will remain in their possession. When the daughters grow up, they will marry them, and at their marriage they will give them what presents they would have got from their father, and they will support the mother until her death. When all the daughters are disposed of, the widow will get the perquisites of a childless widow and go to her father's house or will go and live with her daughters.
"The widow with a son will keep all the property in her own possession; the grandfather and uncles can only properly look on to see that the wife does not waste the property. If a widow remarries before her sons are married, the grandfather and uncles will take possession of all the property and the mother of the children has no right to get anything. Sometimes a calf is given her out of kindness and is called bhandkar."
15. Although patrilineal system amongst the Santhals is under stress, the author W.G.Archer himself had noticed the growing trend towards the change whereby a landless widow inherited her late husband's land until she remarried. He had also observed how the settlement operation in deference to local custom recognized right of a women by recording them as owner. In Gantzer's Settlement Record, it is mentioned that settlement confers right of widows and daughters beyond the customary law. In the Bihar District Gazettes of Santhal Parganas, by P.C. Roy Choudhary, the status of a woman has been described as under:
8 S.A.No.292 of 1987"A Santal woman plays a very important role in Santal community. Seemingly she occupies an inferior position but she has her rights along with obligations according to custom and tradition. The civil condition of a Santal woman has been undergoing changes along with the impact of modernism. There have been some investigations into the position of a Santal woman by several scholars. Mr. W.G. Archer, who was a Deputy Commissioner of Santal Parganas some years back has also made some investigations.
The joint family system of the Santal has undergone a great change. E.G. Man in his book "Santhalia and the Sonthals" (1867) had mentioned that a Santal is "blessed with large families..... nine olive branches being a common number to one man's quiver.......".
But from investigation it was found that the joint family system has become now a rarity. Hardly a son after marriage lives jointly with his father. The marriage ipso facto creates a separation and a Santal family now consists of the married couples and their unmarried children. Poverty due to small holding of the Santal cultivators seems to be the main cause of breaking the joint family tie. Joint family system envisages property, particularly landed property to create a co-partnership. The spread of literacy and education, especially among the Christian Santals seems to be also a factor for separation. There is a tendency among the educated service-holders to live separately. Sometimes the father is himself responsible for separation in case of re-marriage."
16. From the aforesaid discussions, it is evidently clear that custom prevailing in the Santhal community has undergone a great change. The rules against female succession among santhals whether christen or non- christens are changing owing to the force of public opinion. The change which is occurring is in the direction of uplifting the condition of women and giving them right in the family as also in the property. From the books of the great scholars who are the authors of many books including the books in Survey and Settlement quoted herein before, it is manifestly clear that there are instances where a sonless male or female have taken in adoption a grandson or any of the agnates of the family.
17. In the case of Madhu Kishwar and others Vs. State of Bihar & others [(1996) 5 S.C.C. 125], provisions of Chotanagpur Tenancy Act, 1908 which provide succession to property in the male line was challenged as discriminatory and unfair against women and, therefore, ultra vires to equality clause in the Constitution. In the said case, the Supreme Court observed: -
"37. The public policy and constitutional philosophy envisaged under Articles 38, 39, 46 and 15(1) and (3) and 14 is to accord social and economic democracy to women as assured in the Preamble of the Constitution. They constitute the core foundation for economic empowerment and social justice to women for stability of political democracy. In other words, they frown upon gender discrimination and aim at elimination of obstacles to enjoy social, 9 S.A.No.292 of 1987 economic, political and cultural rights on equal footing. Law is a living organism and its utility depends on its vitality and ability to serve as sustaining pillar of society. Contours of law in an evolving society must constantly keep changing as civilization and culture advances. The customs and mores must undergo change with the march of time. Justice to the individual is one of the highest interests of the democratic State. Judiciary cannot protect the interests of the common man unless it would redefine the protections of the Constitution and the common law. If law is to adapt itself to the needs of the changing society, it must be flexible and adaptable.
38. Law is the manifestation of principles of justice, equity and good conscience. Rule of law should establish a uniform pattern for harmonious existence in a society where every individual would exercise his rights to his best advantage to achieve excellence, subject to protective discrimination. The best advantage of one person could be the worst disadvantage to another. Law steps in to iron out such creases and ensures equality of protection to individuals as well as group liberties. Man's status is a creature of substantive as well as procedural law to which legal incidents would attach. Justice, equality and fraternity are trinity for social and economic equality. Therefore, law is the foundation on which the potential of the society stands."
Their Lordships further observed: -
"28. As per the U.N. Report 1980 "women constitute half the world population, perform nearly two-thirds of work hours, receive one-tenth of the world's income and own less than one-hundredth per cent of world's property".
Half of the Indian population too are women. Women have always been discriminated against and have suffered and are suffering discrimination in silence. Self-sacrifice and self-denial are their nobility and fortitude and yet they have been subjected to all inequities, indignities, inequality and discrimination. Articles 13, 14, 15 and 16 of the Constitution of India and other related articles prohibit discrimination on the ground of sex. Social and economic democracy is the cornerstone for success of political democracy. The Scheduled Castes, Scheduled Tribes and women, from time immemorial, suffered discrimination and social inequalities and made them accept their ascribed social status. Among women, the tribal women are the lowest of the low. It is mandatory, therefore, to render them socio-economic justice so as to ensure their dignity of person, so that they be brought into the mainstream of the national life. We are conscious that in Article 25 which defines Hindus, Scheduled Tribes were not brought within its fold to protect their customs and identity. We keep it at the back of our mind."
18. The customary law of adoption prevailing in the Santhals has been recognized in the Santhal Parganas Tenancy (Supplementary Provisions) Act, 1949. Section 20 of the said Act put a restriction in the transfer of raiyati holdings by a raiyat except with the written permission of the Deputy Commissioner. Section 20 of the Act however, provides some relaxation in the transfer of raiyati land by way of usufructuary mortgage to Bank and the Society registered under Bihar and Orissa Co-operative Societies Act, 10 S.A.No.292 of 1987 1935. Section 24 of the Act makes registration of certain transfers of raiyati holdings mandatory. Section 24 reads as under :
"24 Registration of certain transfers of raiyati holdings-(1) When a raiyati holding or any portion thereof is transferred by sale, gift, will or exchange in accordance with the provisions of this Act and the record-of-rights, the transferee or his successor in title may cause the transfer to be registered in the office of the landlord of the village.
(2) Notwithstanding anything to the contrary contained in the record-of-rights or any law or anything having the force of law in the Santal Parganas, the landlord shall allow the registration of such transfers, and shall not be entitled, except in the case of a transfer by sale, gift or will, to levy any registration fee. In the case of a transfer by sale, gift or will, the landlord shall be entitled to levy a registration fee of the following amount, namely,--
(a) when rent is payable in respect of the holding or portion, a fee of two per centum on the annual rent thereof:
Provided that such fee shall not be less than eight annas or more than fifty rupees; and
(b) when rent is not payable in respect of the holding or portion, a fee of one rupee:
Provided that a gift to the husband or wife of the donor to a son adopted under the Hindu Law, or the daughter, sister, adopted son or adopted daughter of the donor under the Santal Law, or to a relation by consanguinity within three degrees of such donor shall not require any registration fee to be paid to the landlord. (3) If any landlord refuses to allow the registration of any such transfer as is mentioned in sub-section (1), the transferee or his successor in the title may apply to the Deputy Commissioner, and the Deputy Commissioner shall thereupon, after causing notice to be served on the landlord, make such enquiry as he considers necessary, and shall, if he is satisfied that the transfer is not contrary to the provisions of this Act or the record-of-rights, pass an order declaring that the transfer shall be deemed to be registered, and may also pass such order as he thinks fit in respect of the costs of any such enquiry."
19. From reading of proviso 2 of sub-Section (2) of Section 24 , it is evidently clear that it gives relaxation by providing that in case of gift of adopted son or adopted daughter of the donor under the Santhal Law, no registration fee is required to be paid. There is sufficient indication about the custom of adoption amongst the Santhals.
20. Be that as it may, the only substantial question of law needs to be answered in this appeal is as to whether the Courts below have erred in law in placing the onus on the plaintiff to prove that there was no custom of adoption by females among the santhals.
21. In my considered opinion where plaintiff asserts that adoption of a child by female is not customary in Santhals and the defendant discharged the onus by adducing evidence to show that adoption of child by female 11 S.A.No.292 of 1987 santhal is customary then heavy onus lies on the plaintiff for proving that such custom of adoption of a child is not customary in Santhals.
22. In the case of "Mt. Barkar Bibi .Vs. Mohd. Amin and Anr"(A.I.R. 1935 Lahore 325), a Division Bench of Lahore High Court while dealing with the customary law observed :
"We may say at once that the decision of the case has proceeded on entirely erroneous grounds. Even since their Lordships of the Privy Council have decided 1917 P C 181 (1), the law has been very clear that when a person asserts that he is governed by custom it is incumbent upon him to prove that he is so governed and further to prove what that custom is. There is no uniform custom applicable to the whole of the Punjab nor has it so far been codified. It is well known that custom differs from place to place and from tribe to tribe and it is also recognized by authority that it may differ from family to family. In words of Robertson, J.. In 110 P R 1906 which have been quoted with approval by their Lordships of the Privy Council in 1917 P C 181 (1) :
"It is not the spirit of Customary law, nor any theory of custom or deductions from other customs which is to be the rule of decision, but only any custom applicable to the parties concerned."
23. In the instant case, it was specifically pleaded by the defendants/respondents that according to Santhal custom a widow is also competent to adopt a child. The defendants asserted that formal ceremonies like Bonga Tola and Nim Da Mariwere were duly performed. Subsequently, a deed of adoption was also registered. Witnesses of the same community were examined by the defendants who have consistently deposed about the custom prevalent in Santhal Community for adoption of a child by a widow. Not only that one of the witnesses D.W.5 Misil Soren has deposed that he was taken in adoption by Maino Tudu , a widow after the death of her husband Jiwan Besra.
24. Both the trial Court and the Appellate Court after recorded a concurrent find about the custom of adoption of a child by a female santhal and the finding is based on oral evidence coupled with registered document of adoption. The finding of fact recorded by two courts cannot and shall not be held to be perverse in law. The impugned judgment and decree passed by the Trial Court and affirmed by the Appellate Court, therefore, cannot be disturbed in Second Appeal.
25. For the reasons aforesaid, there is no merit in this appeal, which is, accordingly, dismissed.
(M. Y. Eqbal, J) Jharkhand High Court, Ranchi Dated, the 12th day of December, 2008 Pandey/Manoj / A.F.R.