CASE NO.: Appeal (civil) 5689 of 2006 PETITIONER: Bhimashya and Ors RESPONDENT: Smt. Janabi @ Janawwa DATE OF JUDGMENT: 11/12/2006 BENCH: Dr. ARIJIT PASAYAT & LOKESHWAR SINGH PANTA JUDGMENT:
J U D G M E N T
(Arising out of S.L.P (C) No. 26558 of 2005)
Dr. ARIJIT PASAYAT, J.
Leave granted.
Challenge 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.
The factual position, in a nutshell, is as follows:
The 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.
The 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.
The 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.
So far 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.
The 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.
In 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.
There is no appearance on behalf of the respondent in
spite of notice.
It is 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 present case.
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 adoption.
Prior to the Act under the old Hindu Law (Hindu Code) Article
3 provides 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 provided he
has no male issue in existence at the date of
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.”
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.
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 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:
‘”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 custom 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 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
compulsory.
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 HS. Gour’s Hindu Code, Volume I.
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 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.
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 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.
(See 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.).
As 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.
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
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
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.
Under 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 SC 781).
Though 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.
It is 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 & F
131)].
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.
A 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).
Is a 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.
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 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).
“A 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).
Custom 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.
Custom 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.
Both 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.
There 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.
That 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.