& Ors Vs. Smt. Janabi @ Janawwa  Insc 934 (11 December 2006)
Arijit Pasayat & Lokeshwar Singh Panta
out of S.L.P (C) No. 26558 of 2005) Dr. ARIJIT PASAYAT, J.
in this appeal is to the judgment rendered by a learned Single Judge of the
Karnataka High Court dismissing the Second Appeal filed by the appellants who
are defendants in the suit filed by the respondent as plaintiff. In the
impugned judgment the High Court held that the stand taken by the defendants
that defendant No.1 was the adopted son of one Fakirappa, was not established.
However, it granted relief in respect of property at item No.3 in the schedule
to the plaint, which the first Appellate Court had held to be ancestral
property of Fakirappa. High Court held that the said property is the self
acquired property of defendant No.1 and the plaintiff is not entitled to any
share in the said property. The parties are described in the manner they were
arrayed in the suit filed by the plaintiff.
factual position, in a nutshell, is as follows:
plaintiff filed the suit for partition and separate possession of her half
share in the suit properties and for mesne profits averring that one Fakirappa,
the propositus died on 19.3.1965. He had two wives, namely: Bhimawwa, the first
wife and Basawwa, the second wife. Basawwa, died about 35 years before filing
of the suit. Fakirappa had two daughters namely, Kallawwa, who was born to Bhimawwa,
the first wife and Janabi, the plaintiff who was born to the second wife Basawwa.
The said Kallawwa is the wife of defendant No.1 while defendants 2 and 3 are
the sons of defendant No.1. It is further averred that the suit properties are
the ancestral and joint family properties and since Fakirappa died leaving behind
the plaintiff and the wife of the defendant No.1 and defendant Nos. 2 and 3 are
the sons of the 1st defendant, after the death of Fakirappa, the plaintiff is
entitled to half share in the suit schedule properties.
defendant No.1 resisted the suit by filing the written statement averring that
the defendant No.1 is the validly adopted son of the deceased Fakirappa. He has
been wrongly described in the plaint. Fakirappa and his wife, Bhimawwa had
validly adopted the defendant No.1 on 28.3.1960 by observing and performing all
the necessary customary and religious ceremonies including giving and taking
and they have also executed a registered adoption deed in favour of the
defendant No.1. Suit house properties were not of the ownership of the deceased
Fakirappa. They are the self acquired properties of defendant No.1 and the
plaintiff cannot claim any share in the same. Averment made in the plaint that
the plaintiff is the daughter of Fakirappa through the second wife, is not
correct and the plaintiff is put to strict proof of the same. Since the death
of Fakirappa, the defendants have been in exclusive possession and enjoyment of
the suit properties openly and without anybody's obstruction as exclusive
owners thereof. The plaintiff has been ousted from the enjoyment of the suit
properties since the death of Fakirappa. The plaintiff having not taken any
step towards asserting her right in respect of the suit properties is not
entitled to any relief in the suit.
trial Court framed 11 issues and came to hold that defendant No.1 is the
adopted son of Fakirappa. The present appeal does not relate to the other
issues and, therefore, we are not dealing with those issues in detail.
Questioning the conclusion of the trial Court that defendant No.1 was the adopted
son of Fakirappa, an appeal was filed. The First Appellate Authority held that
the claim of adoption of defendant No.1 is untenable and even when there was a
registered deed of adoption, the same was of no consequences and the adoption,
if any, had no sanctity in the eye of law. It also held that the property
described as Item No.3 was ancestral property. The defendants preferred an
appeal under Section 100 of the Code of Civil Procedure, 1908 (in short 'the
CPC') questioning correctness of the First Appellate Court's conclusions. The
High Court, by the impugned judgment, as noted above, granted partial relief.
as the question of adoption is concerned, it was held that appellant No.1 was
married to the daughter of Fakirappa, the adoption was claimed to have been
made on 28.3.1960 and the adoption deed was registered on 31.3.1960 which was
at a time when The Hindu Adoption and Maintenance Act, 1956 (in short 'the
Act') was in operation.
defendant No.1 was more than 15 years of age and, therefore, could not have
been adopted and, therefore, his adoption, if any, cannot be recognized in law.
Relief was granted in respect of Item No.3 property.
support of the appeal, learned counsel for the appellant submitted that though
the Act was in operation when the adoption took place, it is really of no
relevance because according to the customs prevalent in the area and the
families of appellants, the adoption is clear, legal and proper.
is no appearance on behalf of the respondent in spite of notice.
to be noted that no issue regarding custom was framed by the Trial Court. But
because of the finding recorded by the trial Court, the First Appellate Court
dealt with it. The High Court has categorically noticed that there was no
pleading regarding custom and no evidence in that regard was led. Learned
counsel for the appellant, with reference to certain observations made by the
Trial Court, submitted that the question was very much in the minds of the
parties and though no specific issue was framed, yet, the evidence laid clearly
established the claim regarding adoption. It is submitted that judicial notice
can be taken note of the fact that in the area to which the parties belong
there is no prohibition on adoption in the manner done and it is recognized and
permissible under the custom to make an adoption, as has been done in the
would be desirable to refer to certain provisions of the Act and the Hindu Code
which governed the field prior to the enactment of the Act, Section 3(a) of the
Act defines 'custom' as follows:
Definitions - In this Act, unless the context otherwise requires. –
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:
that the rule is certain and not unreasonable or opposed to public policy; and
Provided further that, in the case of a rule applicable only to a family, it
has not been discontinued by the family:" Section 4 provides that 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 the Act shall become
inoperative with respect to any matter for which provision was made in the Act
except where it was otherwise expressly provided. Section 4 gives overriding
application to the provisions of the Act. Section 5 provides that adoptions are
to be regulated in terms of the provisions contained in Chapter II.
6 deals with the requisites of a valid adoption. Section 11 prohibits adoption
in case it is of a son, where the adoptive father or mother by whom the
adoption is made has a Hindu son, son's son, or son's son's son, whether by legitimate
blood relationship or by adoption, living at the time, of adoption.
to the Act under the old Hindu Law (Hindu Code) Article 3 provides as follows:
3-(1) A male Hindu, who has attained the age of discretion and is of sound
mind, may adopt a son to himself provided he has no male issue in existence at
the date of adoption.
Hindu who is competent to adopt may authorise either his (i) wife or (ii) widow
(except in Mithila) to adopt a son to himself." Therefore, prior to the enactment
of the Act also adoption of a son during the lifetime of a male issue was
prohibited and the position continues to be so after the enactment of the Act.
a son became an outcast or renounced Hindu religion, his father became entitled
to adopt another. The position has not changed after enactment of Caste
Disabilities Removal Act (XXI of 1850), as the outcast son does not retain the
religious capacity to perform the obsequies rites. In case parties are governed
by Mitakshara Law, additionally adoption can be made if the natural son is a
congenital lunatic or an idiot. The question, therefore, is whether by custom,
the prohibition could be overcome. Relevant provisions, therefore, is whether
by custom as defined in the Hindu Code are as follows:
defined : - Custom is an established practice at variance with the general law.
of custom - A custom varying the general law may be a general, local, tribal or
1. - A general custom includes a custom common to any considerable class of
2. - A custom which is applicable to a locality, tribe, sect or a family called
a special custom.
cannot override express law. (1) Custom has the effect of modifying the general
personal law, but it does not override the statute law, unless it is expressly
saved by it.
Such custom must be ancient, uniform, certain, peaceable, continuous and
custom - No custom is valid if it is illegal, immoral, unreasonable or opposed
to public policy.
and proof of custom (1) He who relies upon custom varying the general law must
plead and prove it.
Custom must be established by clear and unambiguous evidence." (See Sir
HS. Gour's Hindu Code, Volume I.
Edition) Custom must be ancient, certain and reasonable as is generally said.
It will be noticed that in the definition in Cl. (a) of Section 3 of the Act,
the expression 'ancient' is not used, but what is intended is observance of
custom or usage for a long time. The English rule that a 'custom, in order that
it may be legal and binding, must have been used so long that the memory of man
runneth not to the contrary' has not been strictly applied to Indian
conditions. All that is necessary to prove is that the custom or usage has been
acted upon in practice for such a long period and with such invariability and
continuity as to show that it has by common consent been submitted to as the
established governing rule in any local area, tribe, community, group of
family. Certainty and reasonableness are indispensable elements of the rule.
For determination of the question whether there is a valid custom or not, it
has been emphasized that it must not be opposed to public policy.
origin of custom of adoption is lost in antiquity. The ancient Hindu law
recognized twelve kinds of sons of whom five were adopted. The five kinds of
adopted sons in early times must have been of very secondary importance, for,
on the whole, they were relegated to an inferior rank in the order of sons. Out
of the five kinds of adopted sons, only two survive today; namely, the Dattaka
from prevalent throughout India and the Kritrima
for confined to Mithila and adjoining districts. The primary object of adoption
was to gratify the means of the ancestors by annual offerings and, therefore,
it was considered necessary that the offerer should be as much as possible a
reflection of a real descendant and has to look as much like a real son as
possible and certainly not be one who would never have been a son. Therefore,
the body of rules was evolved out of a phrase of Saunaka that he must be the
reflection of a son. The restrictions flowing from this maxim had the effect of
eliminating most of the forms of adoption.
Hindu Law by S.V. Gupta. Third edition at pages 899 - 900). The whole law of Dattaka
adoption is evolved from two important texts and a metaphor. The texts are of
Manu and Vasistha, and the metaphor that of Saunaka. Manu provided for the
identity of an adopted son with the family into which he was adopted. (See Manu
Chapter IX, pages 141142, as translated by Sir W. Jones). The object of an
adoption is mixed, being religious and secular. According to Mayne, the
recognition of the institution of adoption in early times had been more due to
secular reasons than to any religious necessity, and the religious motive was
only secondary; but although the secular motive was only dominant, the
religious motive was undeniable. The religious motive for adoption never
altogether excluded the secular motive. (See Mayne's Hindu Law and Usage,
Twelfth Edition, page 329.).
held by this Court in V.T.S. Chandrashekhara Mudalier v. Kulandeivelu Mudalier
(AIR 1963 SC 185), substitution of a son for spiritual reason is the essence of
adoption, and consequent devolution of property is mere accessory to it; the
validity of an adoption has to be judged by spiritual rather than temporal
considerations; and, devolution of property is only of secondary importance.
Singh v. Harnam Singh (AIR 1954 SC 581), it was observed by this Court that
under the Hindu Law adoption is primarily a religious act intended to confer
spiritual benefit on the adopter and some of the rules have, therefore, been
held to be mandatory, and compliance with them regarded as a condition of the
validity of the adoption. The first important case on the question of adoption
was decided by the Privy Council in the case of Amarendra Mansingh v. Sanatan
Singh, (AIR 1933 PC 155). The Privy Council said:
the Hindus, a peculiar religious significance has attached to the son through Brahminical
influence, although in its origin the custom of adoption was perhaps purely
secular. The texts of the Hindus are themselves instinct with this doctrine of
religious significance. The foundation of the Brahminical doctrine of adoption
is the duty which every Hindu owes to his ancestors to provide for the
continuance of the line and solemnization of the necessary rites." With
these observations it decided the question before it, viz. that of setting the
limits to the exercise of the power of a widow to adopt, having regard to the
well established doctrine as to the religious efficacy of sonship. In fact the
Privy Council in that case regarded the religious motive as dominant and the
secular motive as only secondary.
object is further amplified by certain observations of this Court. It has been
held that an adoption results in changing the course of succession, depriving
wife and daughters of their rights, and transferring the properties to
comparative strangers or more remote relations. (See Kishori Lal v. Chaltibai
AIR 1959 SC 504). Though undeniably in most of the cases motive is religious
the secular motive is also dominant present. We are not concerned much with
this controversy and as observed by Mayne it is unsafe to embark upon an
enquiry in each case as to whether the motives for a particular adoption were
religious or secular and an intermediate view is possible that while an
adoption may be a proper act, inspired in many cases by religious motives,
courts are concerned with an adoption, only as the exercise of a legal right by
certain persons. The Privy Council's decision in Amerendra Mansingh's case
(supra) has reiterated the well established doctrine as to the religious
efficacy of sonship, as the foundation of adoption. The emphasis has been on
the absence of a male issue. An adoption may either be made by a man himself or
by his widow on his behalf. The adoption is to the male and it is obvious that
an unmarried woman cannot adopt. For the purpose of adoption is to ensure
spiritual benefit for a man after his death by offering of oblations and rice
and libations of water to the manes periodically. Woman having no spiritual
need to be satisfied, was not allowed to adopt for herself. But in either case
it is a condition precedent for a valid adoption that he should be without any
male issue living at the time of adoption.
the old law, 'male issue' was indicated and it was held at it was to be taken
in the wide sense peculiar to the term in Hindu Law to mean three direct
descendants in the male line. (See Mayne's Hindu Law and Usage referred to
above at page 334). Even if for the sake of argument in the instant case, it is
accepted that a custom was prevalent authorising adoption in the presence of a
male issue, yet it being contrary to the very concept of adoption cannot be
said to have any force. Adoption is made to ensure spiritual benefit for a man
after his death. Public policy is not defined in the Act. However, it connotes
some matter which concerns the public good or the public interest. No
strait-jacket formula can be laid down to hold what is for the public good or
for the public interest, or what would be injurious or harmful to the public
good or public interest. What is public good must be inconsonance with public
conscience. Speaking about 'public policy', Lord Atkin said, "the doctrine
should only be invoked in clear cases in which the harm to the public is
substantially incontestable, and does not depend upon the idiosyncratic inference
of a few judicial minds. (See Fender v. St. John Mildmay 1938 AC 1). The
observations were quoted with concurrence in Gherulal v. Mahadeo Das, (AIR 1959
it cannot be disputed as a general proposition that a custom may be in
derogation of Smriti law and may supersede that law where it is proved to
exist, yet it is subject to the exception that it must not be immoral or
opposed to public policy and cannot derogate from any statute unless the
statute saves any such custom or generally makes exception in favour of rules
of customs. (See: Mulla's Principles of Hindu Law, Fifteenth Edition, at pages
67-68). Nothing has been shown to me that an exception of this nature existed
in the old Hindu Law. The ancient texts provide for a custom, but imperate it
not to be opposed to Dharma, that means as already pointed out it should not be
immoral and opposed to public interest.
well established principle of law that though custom has the effect of
overriding law which is purely personal, it cannot prevail against a statutory
law, unless it is thereby saved expressly or by necessary implication. (See The
Magistrate of Dunbar v. The Duchess of Roxburgha (l835)
6 ER 1642), Noble v. Durell (1789)100 ER 569). A custom may not be illegal or
immoral; but it may, nevertheless, be invalid on the ground of its
unreasonableness. A custom which any honest or right-minded man would deem to
be unrighteous is bad as unreasonable. [See: Paxton v. Courtnay (1860)2 F &
Kone v. Ammakutti Ammal (AIR 1928 Mad 299 (FB), it was held that where custom
is set up to prove that it is at variance with the ordinary law, it has to be
proved that it is not opposed to public policy and that it is ancient,
invariable, continuous, notorious, not expressly forbidden by the legislature
and not opposed to morality or public policy.
custom is a particular rule which has existed either actually or presumptively
from time immemorial, and has obtained the force of law in a particular
locality, although contrary to or not consistent with the general common law of
the realm. A custom to be valid must have four essential attributes. First, it
must be immemorial; secondly, it must be reasonable; thirdly, it must have
continued without interruption since its immemorial origin, and, fourthly, it
must be certain in respect of its nature generally as well as in respect of the
locality where it is alleged to obtain and the persons whom it is alleged to
affect. (See HALSBURY, 4th Edn., Vol. 12, para 401, p.2 & para 406, p.5).
law not written, established by long usage, and the consent of our ancestors?
No law can oblige a free people without their consent: so wherever they consent
and use a certain rule or method as a law, such rule etc., gives it the power
of a law and if it is universal, then it is common law: if particular to this
or that place, then it is custom. Custom is one of the main triangles of the
laws of England; those laws being divided into
Common Law - Statute Law, and Custom.
India is a land where there are very many
customs appropriate to certain areas of territory; families or castes.
"custom", in order to be binding, must derive its force from the fact
that by long usage it has 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
so long that the memory of man runneth not to the contrary" should not be
strictly applied to Indian Conditions. (See Thakur Gokalchand v. Parvin Kumari
AIR 1952 SC 231).
custom is local Common Law. It is Common Law because it is not Statute Law; it
is Local Law because it is the law of a particular place, as distinguished from
the general Common Law. Local Common Law is the law of the country (i.e.,
particular place) as it existed before the time of legal memory" (per Jessel,
M.R., Hammerton v. Honey, 24 WR 603).
implies, not that in a given contingency a certain course would probably be
followed, but that contingency has arisen in the past and that a certain course
has been followed, and it is not at all within the province of Courts to extend
custom by the process of deduction from the principles which seem to underline
customs which have been definitely established.
is authoritative, it stands in the place of law, and regulates the conduct of
men in the most important concerns of life: fashion is arbitrary and
capricious, it decides in matters of trifling import: manners are rational;
they are the expressions of moral feelings. Customs have more force in a simple
state of society.
practice and custom are general or particular but the former is absolute, the
latter relative; a practice may be adopted by a number of persons without
reference to each other; but a custom is always followed either by imitation or
prescription: the practice of gaming has always been followed by the vicious
part of society; but it is to be hoped for the honour of man that it will never
become a custom.
was no specific plea relating to custom though some vague and indefinite
statements have been made in the plaint and that too in a casual manner. No
issue was framed and no evidence was laid to prove custom.
being so, the High Court's order does not suffer from any infirmity to warrant
interference. The appeal fails and is dismissed but, in the circumstances,
without any order as to costs.