SALEKH CHAND (DEAD) BY LRS. v. SATYA GUPTA AND ORS

Citation: [2008] 3 S.C.R. 833

Court: Supreme Court of India

Bench: ARIJIT PASAYAT, P. SATHASIVAM

Case summary

SALEKH CHAND (DEAD) BY LRS. v. SATYA GUPTA AND ORS.pdf

Judgment text

[2008] 3. S. C. R. 833 ... '\ SALEKH CHAND (DEAD) BY LRS. ~ v. SATYA GUPTA AND ORS. (Civil Appeal No. 1380 of 2002) MARCH 4, 2008 (DR. ARIJIT PASAYAT AND P. SATHASIVAM, JJ. ) ,,~ ·\ Hindu Adoption and Maintenance Act, 1956/Hindu Law; Article 3(1) and (2): Adoption of sister's son by a Hindu- Validity of- Division in property of original owner amongst his four sons/lineal descendants - His one son allegedly adopted son of his sister - Widow of adopted son allegedly sold her share in the suit property to appellants - Trial Court held the adoption as invalid - Reversed by first appellate Court - High Court held that .. ; prevalent customs did not allow adoption of sister's son - Correctness of - Held: Correct - Since adoption in question took place prior to enactrrent of 1956 Act, Old Hindu Law applicable -Adoption of son! Dattaka evolved around two texts of 'Manu' and 'Vashishta' and a metaphor 'SAUNAKA' - Adoption of son recognized more due to secular.

reasons than religious necessity - However, foundation of adoption of son is based on religious efficacy - It is incumbent on the claimant ' ) to prove the custom on which he relies for a valid adoption - " Customs from its long use obtained force of law and became a rule - When a custom is against the written texts of Hindu Law, one who sets up such a custom must prove it by a clear and unequivocal language - In the instant case, appellantsvendee failed to establish that the adoption of sister's son by vendor/descendant oforiginal owner ofthe property in quesiton was in terms of customs prevalent at that time - Moreovetf existence of such a custom was a/so not established - Hence, ... i appeal sans merit, thus dismissed. ·'! i. ·, ) ~ Words and Phrases: 'Customs' - Meaning of in the context of Hindu Code! Old Hindu Law. 'Religious efficacy of sonship' - Applicability of The question which arose for determination in this ," appeal was .

as to whether a Hindu belonging to Vaish r community could adopt a son as per custom prevalent in that co~munity. Appellants contended that the custom to adopt the son of sister was established; that there was enough material to show that the family members treated 'C' as the adopted son and, therefore, the First Appellate Court's judgment and decree should have been maintained; 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; and that in any event do away with the requirement to prove legality of adoption and that the adoption took place sometime in 1928-1929. Dismissing the appeal, the Court ,,_ be proved. A custom derives its force from the evidence from long t( ,. usage having obtained the force of law.

(Para - 25) [852-F-G; 853-A] ' Principles of Hindu Law by Mui/a - referred to. 2. 4 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 a·s the Riwaj-i-am or Manual of Customary Law. (Para - 28) [853-D-E] SALEKH CHAND (DEAD) BY LRS. v. 839 SATYA GUPTA AND ORS. --. ~ 2. 5 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. [Para 29] [853-F, G, H; 854-A] - Principles of Hindu Law by Mui/a - referred to. 2. 6 So far as the evidence adduced is concerned, reliance was placed on the evidence of three witnesses. 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, ~w 3, is ouJsider 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. (Para - 30) [854-E-H; 855-A] 3. In view of the facts and circumstances of the case and the principles of law as enumerated, the inevitable conclusion is that the appeal sans merit. (Para - 31) [855-8] ~ .. \ CIVILAPPELLATE JURISDICTION : Civil Appeal No. 1380 of 2002. ~ From the final Judgment and Order dated 29. 9. 2000 of the High Court of Judicature at Allahabad in S. A. No. 354/ 1998. Dinesh Dwivedi, Shalini Kumar and V. Mohana for the Appellant. ,.. Bharat Sangal for the Respondents. .. The Judgment of the Court was delivered by 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 .. ' Muda/ie v. Kulandeivelu Mudalier (AIR 196. 3 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 importance. 20. 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 "' ,.. _1.. the adopter and some of the rules have therefore been held to be mandatory, and compliance with them regarded as condition of the validity of the adoption. The first important case f r 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 ... '(I 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 , 23. It is incumbent on party setting up a custom to allege I and prove the custom on which he relies. Custom cannot pe 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. 24. Where the proof qf 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. ~- _,~ 25.. 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 ~ I 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 ofVaish. 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 f ·" " 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 of law. 26. 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. ,. c. 27. 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, D. , I been submitted to as the established governing rule of a particular locality. 28. Acustom 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-iam or Manual of Customary Law. ':;. \ 29. 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 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 MuIla'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 .

J,__ 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 directory; 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 paragraph : "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. " 30. 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, ti his evidence is contrary to and is· specific that there was no A. 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 31.

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. S. K. S. Appeal dismissed. c ~ I