Chand (dead) By LRS Vs. Satya Gupta and Ors  INSC359 (4 March 2008)
Dr. ARIJIT PASAYAT & P. SATHASIVAM CIVIL APPEAL NO. OF 2008 (Arising out of SLP (C.) No. 1380 of 2002) Dr.
ARIJIT PASAYAT, J
1. Second appeal filed by the defendants having been allowed by the learned
Single Judge of the Allahabad High Court one of the plaintiffs Salekh Chand has
filed this appeal. The legal heirs of the another plaintiff Om Prakash who died
on 28.2.1998 (proforma respondent No.4) have been impleaded in this appeal. Om
Prakash's widow Smt. Ram Kumari died on 2.6.1999 and, therefore, their son
Munna Lal is proforma respondent no.4.
2. Background facts in a nutshell are as follows:
A suit filed by the plaintiffs Om Parkash and present appellant Salakh Chand
was dismissed by learned Additional Civil Judge, Ghaziabad in Suit No.699/84.
Learned Additional District Judge, Ghaziabad reversed the judgment and decree
dated 5.3.1990 by judgment and decree dated 22.2.1998. The plaint averments
refer to the following facts:
Om Prakash and Salekh Chand filed Suit No.699 of 1984 against Smt. Satya
Gupta and one Brijesh Kumar. Shiv Om Banshal and Mahendra Kumar Banshal
(Respondent Nos. 2 and 3 in this appeal) were impleaded as defendant nos.3 and
4. The plaint allegations were that House no.104 (old number) with its new
numbers 175 and 176 described in the plaint belonged to one Pares Ram who had
four sons namely, Jagannath, Dina Nath, Anand Swaroop and Battu Mal. The
pedigree was as follows:
PEDIGREE PARES RAM | | | | Jagannath Dina Nath Anand Swaroop Battu Mal |
(died issue-less) | | | Chandra Bhan Surendra Kumar (adopted son) (son) Smt.
Shanti Devi _________________________________________ Chawali Devi Satya Gupta
Brijesh Kumar (widow) (daughter) (adopted son) defendant no.1 defendant no.2
Dina Nath died issue-less out. During his lifetime he had sold his 1/4th share
to Battu Mal. Surendra Kumar and his mother (widow of Anand Swaroop) had sold
their 1/4th share to Smt. Satya Gupta by registered sale-deed. Brijesh Kumar
defendant no.2 is the adopted son of Battu Mal. On the death of Jagannath his
son Chandra Bhan succeeded to share of Jagannath in the suit property. On the
death of Chandra Bhan his widow succeeded to the suit property. She executed a
sale-deed dated 26.7.1979 of her share in the suit property.
Thus the plaintiffs are co-sharers of 1/4th share in the suit property
whereas defendant nos.1 and 2 are co-sharers of 3/8 share each in the suit
property. It is alleged that Jagannath had no issue. He had adopted Chandra
Bhan who happens to be the son of his real sister and the sister's husband's
name was also Jagannath. Ceremony of adoption was performed in accordance with
the customs of the community prevalent among the parties in the month of Flagun
Samvat 1985. There was a custom in the community of the co-sharers to adopt
sister's son and Smt. Shanti Devi was wife of Chandra Bhan.
The plaintiffs wanted to get the suit property partitioned and have their
separate 1/4th share in the suit property. On the above pleadings the relief
claimed was that the suit property be partitioned by metes and bounds and the
plaintiffs be given possession on the separate share allotted to them.
Defendant no.2 did not file any written statement and suit against him
Defendant no.1 (present respondent no.1) and defendant nos. 3 and 4
contested the suit by filing separate written statements. Defendant no.1 in her
written statement denied the claim of the plaintiffs and it was pleaded that
plaintiff no.1 Om Prakash was tenant of Smt. Chawali Devi on part of the land
of the disputed property at the rate of Rs.65/- per month as rent. He inducted
plaintiff no.2 as subtenant. Smt. Chawali Devi, mother of defendant no.1 Smt.
Satya Gupta succeeded to the share of Chawali Devi in the suit property. She
filed suit no.31 of 1985 for ejectment of the plaintiffs, which was then
pending. The family pedigree was accepted subject to the correction that
Chandra Bhan and Shanti Devi were wrongly shown as son of Jagannath and widow
of Chandra Bhan. Jagannath died issueless. Likewise Battu Mal had not adopted
any son, Brijesh Kumar, and defendant no.2 Brijesh Kumar was not adopted son of
Battu Mal. At the time of his death, Battu Mal was owner of the entire suit
property and on his death his widow Smt. Chawali Devi became owner in
possession and on Chawali Devi's death, defendant no.l Smt. Satya Gupta being
her daughter became owner in possession of the entire suit property. The
plaintiffs and other defendants have no share in the suit property. The
sale-deed executed by Smt.
Shanti Devi in favour of the plaintiffs is null and void.
Jagannath had not adopted Chandra Bhan son of his sister and according- to
the Hindu custom in 'Vaishya' community sister's son cannot be adopted. No such
custom was prevalent in the 'Vaishya' community of Hapur. Hence the alleged
adoption was illegal. Jagannath died issueless about 50 years back and on his
death Dina Nath, Anand Swaroop and Battu Mal alias Jagat Swaroop became owners
in possession by survivorship and their names were mutated in the Municipal
records on the application moved by Dina Nath and Battu Mal in the year of
1935. Thereafter Battu Mal has purchased the share of Dina Nath and Anand
Swaroop and thus Battu Mal became sole owner of the suit property. Relevant
entries were made in the Municipal records for the assessment years 1946-51.
Battu Mal was murdered. One Surendra Kumar and Smt. Basanti Devi had no share
in the suit property. But in order to avoid any dispute defendant Satya Gupta
had purchased 1/2 share from Surendra Kumar and Smt. Basanti Devi. Battu Mal
had never adopted Brijesh Kumar and Brijesh Kumar is son of one Shambhu Saran
who was distantly related to Battu Mal.
Brijesh Kumar was sentenced to life imprisonment for committing the murder
of Battu Mal in the year 1956 and thus Brijesh Kumar was not entitled to
succeed to the property of Battu Mal. One Sri Hari Shanker Bansal (father of
Defendants no. 3 and 4) was tenant of Smt. Chawali Devi on part of the suit
property for about last 25 years and he had constructed one pucca room on the
land under his tenancy. Plaintiff No.1, Om Prakash was also given 7 x 7 feet
land of suit property on rent by Smt. Chawli Devi on which a temporary wooden
Khokha was kept by Om Prakash in which he was doing Crockery and Shamiyana
business. It was also pleaded that Smt. Chawali Devi executed a will dated
21.6.1962 in favour of Defendant 1 in respect to her entire property. She died
on 23.5.1980 and on her death defendant no.1 filed Testamentary Suit No.1/81 in
the High Court on the basis of the will dated 21.6.1962 and she was granted
Letters of Administration on 9.4.1984. Defendant no.1 is in possession of the
suit property for last about 20 years and her name is entered in the Municipal
Records as owner of the disputed property. Plaintiffs never objected to it. The
answering defendant sold by a registered sale deed properties to Bansals
(Defendants Nos. 3 & 4) and they are necessary parties to the suit.
Defendants Nos. 3 & 4 in their written statements adopted the pleadings
of defendant no.1 and categorically, alleged that according to the Hindu custom
sister's son cannot be adopted, hence alleged adoption of Chandra Bhan by
Jagannath was against law.
Plaintiffs filed replication in which it was reiterated that in the Township
of Hapur, where Jagannath, Anand Swaroop etc. lived, there was a custom
prevalent among Vaish community to adopt son of sister. It was also pleaded
that since only Battu Mal lived in Ghaziabad, he got his name mutated in the
Municipal Records. In the sale deed executed by Surendra Kumar and Basanti Devi
in favour of defendant No.l's 1/4th share is shown to have been sold as 1/3rd
share to defendant no. l .
On the pleadings of the parties, the trial court framed a number of issues.
Relevant issues are issues nos.1 and 2 which were as follows:
Whether a custom was prevalent in Vaish community to validly adopt son of
Whether Jagannath had legally adopted Chandra Bhan as a son, if so what
is its effect? Both the parties adduced oral as well as documentary evidence.
The trial court on consideration of the evidence adduced before it and also on
consideration of legal position recorded finding that the plaintiffs have
failed to establish that Jagannath had legally adopted Chandra Bhan as his son.
They have also failed to establish that in the Township of Hapur a custom
was prevalent in Vaish community, to validly adopt son of sister. The trial
court also recorded a finding of fact that the plaintiffs have failed to
establish that the formalities of adoption were observed in accordance with
On the other issue also the trial court recorded finding of fact against the
plaintiffs. The trial court accordingly dismissed the suit.
The First Appellant Court reversed the findings and held that the custom of
adoption was prevalent amongst community and, therefore, Chander Bhan was the
legally adopted son of Jagannath in the suit property and on his death, widow
of Chander Bhan had 1/4th share in the property. The plaintiff's suit was accordingly
decreed. The High Court in the second appeal formulated the following questions
Whether the plaintiffs/respondents have successfully discharged the
burden of proof to establish that there existed a custom in the Vaish community
to which the lineal descendants of Paras Ram belonged, to adopt the son of
Whether a Hindu belonging to the regenerated class could be adopted after
performance of 'Janeu' ceremony?
Whether for proving the factum of adoption it was necessary to lead
evidence of giving and taking of an adopted child at the time of ceremony of
Whether recital in a document regarding alleged adoption is sufficient
for proving of the factum of adoption?
3. The High Court found that question no.3 as formulated above was not a
substantial question of law but held that there was no prevalent custom
permitting adoption of the sister's son and, therefore, the appeal was allowed.
4. In support of the appeal learned counsel for the appellants submitted that
the custom was established. There was enough material to show that the family
members treated Chander Bhan as the adopted son and, therefore, the First
Appellate Court's judgment and decree should have been maintained. It was
submitted that the Trial Court and the High Court should not have given any
undue importance to the fact about the Jenau ceremony being held on the same
day, overlooking the fact that the evidence was being given by the witness who
was more than 80 years old. It is submitted that even if the defendants acquire
any title because of the transaction with Anand Swarup his share was 1/4th and
in any event the defendants cannot claim 1/3rd share. It is further submitted
that even if the stand about the acceptance of Chander Bhan as an adopted son
is to be accepted, that in any event do away with the requirement to prove
legality of adoption. It is to be noted that the adoption took place sometime
In response, learned counsel for the respondents submitted that the custom
was not established. Evidence of PWs 1, 2 and 3 did not prove existence of
The rival stands need careful consideration.
6. Since the alleged adoption took place prior to enactment of Hindu
Adoptions and Maintenance Act, 1956 (in short the 'Act'), the old Hindu Law is
It 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 "3. Definitions.- In this Act,
unless the context otherwise requires, - (a) the expressions, 'custom' and
'usage' signify any rule which, having been continuously and uniformly observed
for a long time, has obtained the force of law among Hindus in any local area,
tribe, community, group or family:
Provided that the rule is certain and not unreasonable or opposed to public
policy; 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.
Section 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
Prior to the Act under the old Hindu Law, Article 3 provided as follows
"Article 3-(1) A male Hindu, who has attained the age of discretion and is
of sound mind, may adopt a son to himself provide he has no male issue in
existence at the adoption.
(2) A Hindu who is competent to adopt may authorise either his (i) wife or
(ii) widow (except in Mithila) to adopt a son to himself."
Where 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 l850) as the outcast son does not retain
the religious capacity to perform the obsequial 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.
Relevant provisions relating to custom as defined in the Hindu Code are as
"Custom defined.-- Custom is an established practice at variance with
the general law.
Nature of custom.- A custom varying the general law may be a general, local,
tribal or family custom.
Explanation 1.- A general customs includes a custom common to any
considerable class of persons.
Explanation 2.- A custom which is applicable to a locality, tribe, sect or a
family is called a special custom.
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.
(2) such custom must be ancient, uniform, certain, peaceable, continuous and
Invalid Custom No custom is valid if it is illegal, immoral, unreasonable
or opposed to public policy.
Pleading and proof of custom (1) He who relies upon custom varying the
general law must plead and prove it.
(2) Custom must be established by clear and unambiguous evidence."
(See Sir H.S. Gour's Hindu Code Volume 1, Fifth 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 or 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. I shall deal with the question of public
policy later on.
The origin of custom of adoption assumes great importance. The 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 form
prevalent throughout India and the Kritrima form 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 had 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. (See Hindu Law by S. V. Gupte, Third Edition at pages
899-906). 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 141-142, 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
dominant, the religious motive was deniable. The religious motive for adoption
never altogether excluded the secular motive. (See Mayne's Hindu Law and Usage,
Twelfth Edition, page 329).
As held by this Court in V.T.S. Chandrashekhara Mudalie v. Kulandeivelu
Mudalier (AIR 1963 SC 185), substitution of a son for spiritual reasons 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
In Hem 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 "Among 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 the 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.
This 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 dominantly 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 Amarendra Mansingh's
case (supra), has reiterated the well established doctrine as to the religious
efficacy of sonship, as the foundation of adoption. The emhasis 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 needs
to be satisfied, was not allowed to adopt for herself. But in either it is a
condition precedent for a valid adoption that he should be without any male
issue living at the time of adoption."
6. In Mookka 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. It is not disputed
that even under the old Hindu law, adoption during the lifetime of a male issue
was specifically prohibited.
In addition, I have observed that such an adoption even if made would be
contrary to the concept of adoption and the purpose thereof, and unreasonable.
Without entering into the arena of controversy whether there was such a custom,
it can be said that even if there was such a custom, the same was not a valid
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 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. Coming to the facts of the case P.W.1 did not speak any thing on the
position either of a local custom or of a custom or usage by the community,
P.W.2, Murari Lal claimed to be witness of the ceremony of adoption he was
brother-in-law of Jagannath son of Pares Ram who is said to have adopted
Chandra Bhan. This witness was 83 years old at the time of deposition in the
Court. He did not speak a word either with regard to the local custom or the
custom of the community. P.W.3 as observed by the lower appellate Court was
only 43 years' old at the time of his deposition where as the adoption had
taken place around 60 years back. He has, of course, spoken about the custom
but that is not on his personal knowledge and this is only on the information
given by P.W.2, Murari Lal. He himself did not speak of such a custom. The
evidence of a plaintiff was thus insufficient to prove the usage or custom
prevalent either in township of Hapur and around it or in the community of
Vaish. The evidence of D.W.3 refers only to one instance.
From his evidence it cannot be inferred that Om Prakash had adopted Munna
Lal who was his real sister's son. As already pointed out above, the trial
court found that the evidence of D.W.3 was not so clear and unambiguous as to
lead to no other conclusion except that Munna Lal was son of real sister of Om
Prakash. Besides, this solitary instance of adoption of his sister's son cannot
amount to long usage, which has obtained the force of law. Mulla has
categorically commented that where the evidence shows that the custom was not
valid in numerous instances, the custom could not be held to be proved. A custom
derives its force from the evidence from long usage having obtained the force
All that is necessary to prove is that usage has been acted upon in practice
for such a long period with such invariability as to show that it has, by
consent, been submitted so as to establish governing rules of a particular
locality or community.
A 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 long that
the memory of man runneth not to the contrary" should not be strictly
applied to Indian conditions. All that is necessary to prove is that the usage
has been acted upon in practice for such a long period and with such
invariability as to show that it has, by common consent, been submitted to as
the established governing rule of a particular locality.
A custom may be proved by general evidence as to its existence by members of
the tribe or family who would naturally be cognizant of its existence, and its
exercise without controversy, and such evidence may be safely acted on when it
is supported by a public record of custom such as the Riwaj-i- am or Manual of
In yet another decision reported in Hem Singh and another v. Hakim Singh and
another (AIR 1954 SC 581), this Court observed that the custom recorded in the
'Riwaj-i-am' is in derogation of the general custom and those who set up such a
custom must prove it by clear and unequivocal language.
Similarly, when a custom is against the written texts of the Hindu Law then,
one who sets up such a custom must prove it by a clear and unequivocal
language. It may also be pointed out that the settled law is that for a valid
adoption, not only the person adopting should be capable of lawfully taking in
adoption; but the person giving must be capable of lawfully giving in adoption
and the person adopted must be capable of being lawfully taken in adoption. It
is necessary that all these three conditions should be satisfied and that it is
not sufficient that one of them be satisfied. In the case of Hem Singh (supra)
this court quoted with approval of some of the observations in Mulla's
Principles of Hindu Law at Page 541 of XI Edition with such observations in
paragraph 434 to the following effect:
"It has similarly been held that the texts which prohibit the adoption
of an only son, and those which prohibit the adoption of an only son, those
which enjoin the adoption of a relation in preference to a stranger, are only
therefore, the adoption of an only son, or a stranger in preference to a
relation, if completed, is not invalid; that in cases such as the above, where
the texts are merely directory, the principle of factum valet applies, and the
act done is valid and binding."
But just thereafter the following observations occurred in the same
"But the texts relating to the capacity to give, the capacity to take,
and the capacity to be the subject of adoption are mandatory. Hence the
principle of factum valet is ineffectual in the case of an adoption in
contravention of the provisions of those texts."
So far as the evidence adduced is concerned, reliance was placed on the
evidence of three witnesses. As noted above PW 1 did not speak about any
custom. Similarly, PW 2 did not speak about any custom though he claimed to be
present at the time of adoption. The present appellant was PW 3. He is outsider
of the family. He also accepted that he did not have personal knowledge about
the custom. He only stated that PW2 told him about the custom. Significantly
PW2 did not speak about any existence of any custom. Appellant PW 3 also
accepted that he did not find out as to what was the custom if any and also
that he does not know any other instance. Though the Appellate Court had
referred to evidence of DW3 to hold that he had accepted that the custom was in
existence. As a matter of fact, his evidence is contrary to and is specific
that there was no custom. The First Appellate Court had relied on the evidence
of Munna Lal to conclude that the son of Reba Saran was given in adoption.
Munna Lal specifically stated that the son of Jagannath who was taken in
adoption is not the son of sister of Saran.
8. In view of the aforesaid factual situation and the principles of law
enumerated above, the inevitable conclusion is that the appeal is sans merit,
deserves dismissal, which we direct.