PETITIONER: DANIRAIJI VRAJLALJI, JUNAGADH Vs. RESPONDENT: VAHUJI MAHARAJ SHRI CHANDRAPRABHA WIDOW OFDECEASED MAHARAJ S DATE OF JUDGMENT13/12/1974 BENCH: MATHEW, KUTTYIL KURIEN BENCH: MATHEW, KUTTYIL KURIEN BHAGWATI, P.N. UNTWALIA, N.L. CITATION: 1975 AIR 784 1975 SCR (3) 32 1975 SCC (1) 612 ACT: Hindu Adoptions and Maintenance Act, (78 of 1956) Ss. 4, 15 and 30-Goda Dutta adoption made before commencement of Act- Custom of revocability of such adoption-If affected by Act. HEADNOTE: Section 4(a) of the Hindu Adoptions and Maintenance Act, 1956, provides that any custom of Hindu law in force immediately before the commencement of the Act, shall cease to have effect with respect to any matter for which provision is made in the Act. Section 15 provides that no adoption which has been validly made can be cancelled by the adoptive father or mother nor can the adopted' person renounce such status; and s. 30 provides that nothing contained in the Act shall affect any adoption made before its commencement, and, the validity and effect of any such adoption shall be determined as if the Act had not been passed. The appellant claimed that he was adopted by the respondent in 1956, before the Act came into force, in the 'Goda Datta' form. The respondent filed a suit for a declaration that the appellant was not so adopted, and while the suit was pending, she made a written declaration stating, (a) that the adoption had nevel taken place, and (b) that even if it was believed that it had taken place it stood revocked by that document. The trial court decreed the suit and the High Court confirmed the decree. (Per Bhagwati and Untwalia, JJ.) Dismissing the appeal to this Court. HELD : An adoption in the 'goda datta' form made before the commencement of the Act, can be cancelled after the coming into force of that Act. (per Bhagwati, J.), (a) Section 15 has no application to adoption made prior to- the coming into the force of the Act. The first part of s. 30 enacts the main saving provision. The second part is merely a provision introduced ex abundanti cautela with a view to emphasizing that the validity and effect of the adoption made before the commencement of the Act shall remain untouched by the provisions of the Act. it is clear from the plain and unambiguous language of the first part of the section that the legislature intended to exclude the applicability of all provisions contained in the Act to an adoption made before the commencement of the Act and not merely the applicability of those provisions which affect the validity and effect of such adoption. The true meaning and effect of the first part of the section, uninhibited by the provisions in the second part, is that nothing contained in the Act shall affect any adoption made prior to the commencement of the Act. The word 'affect' is a word of wide import and in the context in which it occurs it must be construed to mean 'touch' of 'relate to' or 'concern'. Therefore, nothing contained in the Act shall touch or apply to an adoption made prior to the commencement of the Act. So construed, what s. 30 enacts is that nothing contained in the Act-and that includes s. 15-shall touch or concern, or in other words apply to an adoption made prior to the Act. [37C-38D; 39C.] (b) The intendment and effect of s. 4(a) of the Act is to abrogate the existing law or custom in so far as it is replaced by the law enacted in the statute. If there is a provision made in the statute which operates in the same area as there existing law or custom, the statutory provision must prevail and the existing law of custom must give way. If s. 15 were applicable to an adoption made prior to the Act it would govern the matter of cancellation; but the section applies only to an adoption made after the commencement of the Act, and therefore, so far as 33 the matter relating to cancellation of an adoption made before the act is concerned, any existing law or custom making provision in that behalf cannot be said to have been abrogated by reason of s. 4(a). Hence, if an adoption could be cancelled by the adopter prior to the commencement of the Act, the right of the adopter to cancel it is not taken away. Such a custom enabling cancellation would continue in force and govern the matter of cancellation of an adoption made before the commencement of the Act. [39E-H] (c) Prior to the commencement of the Act, by custom, a goda datta adoption could be cancelled by the adopter. The Act, in Ss. 5 to 1 1, has laid down the conditions and requirements for making an adoption. Therefore, the custom of goda datta adoption ceases to be in force on the commencement of the Act by virtue of s. 4(a); that is, no such adoption could be made after the commencement of the Act according to custom, and consequently, no question of its cancellation could arise. But, where the adoption was made before the Act, the custom gave a right to the adopter to cancel the adoption and this custom, in so far as it operated on the adoption made prior to the Act, did not cease to be in force under s. 4(a), as s. 15 is not applicable to such an adoption. [40 A-C] (d) It is true that the custom of goda datta adoption has two limbs-One relating to the making of adoption and the other providing for its revocability at the option of the adopter. Therefore, since the custom of such an addition has ceased to be forced on the commencement of the Act, as regards adoption made subsequent to the Act, the second limb also came to an end, because, if no such adoption could be made after the commencement of the Act there could be no question of its cancellation; but, where under the first limb the adoption was already made before the commencement of the Act, the second limb would not have to depend for its survival on the continuance of the first. in such a case, the second limb of the custom could operate, and in relation to such an adoption, the second limb would be the law in force. Therefore, the second limb of the custom relating to revocability continued in force in its application to such an adoption. [40C-H] (Per Untwalia, J.) (1) There is no substance in the contention that revocation could be made only on some reasonable grounds and the custom required it to be so. No reason was necessary to be stated or proved to sustain the revocation. [43G-H] (2) In the deed of cancellation the respondent had stated that if it was believed that the respondent had taken the appellant in adoption, then she was cancelling and annulling it. It could not, therefore, be said that the document does not legally revoke the adoption. [43A; 44A-B] (3) (a) Section 30 is a saving clause in the Act and according to it the provisions of the Act are not to affect any adoption made before its commencement, that is to say, the validity of the adoption made before the commencement of the Act as also its effect will have to be examined and determined with reference to the law or the custom as it stood prior to the coming into force of the Act and not in accordance with it. The expression "affect any adoption" necessarily mean; affect in adoption as to its "validity and effect". Neither of the expression takes within its sweep any of the other incidents or characteristics of the law or the custom of adoption under which it was made. Therefore, the incident or characteristic of this custom which entitled either party to revoke the adoption was not a matter concerning the validity and effect of adoption, and the High Court was not right in holding that the right of revocation is one of the effects or goda datta adoption and is saved by s. 30. [44D-B] (b) Section 4 is clearly prospective and not retrospective. No adoption could be made in the goda datta form after the coming into force of the Act and hence there would be no question of its revocation. if s. 15 prohibits cancellation of an adoption validly made even prior to the commencement of the Act then it is manifest that s. 4 finishes the custom of cancellation after the commencement of the Act, by a prospective operation and not by any retroactive action. The question therefore, would be whether cancellation of the adoption of the appellant was in contravention of s. 15 of the Act. If it was so, the cancellation was invalid and could not be saved by s. 30. [46D-G] 4-L379Sup CI/75 34 (c) Section 15, however, applies only to an adoption which has been validly made in accordance with the provisions of the Act and after its commencement. In its context and set up, its applicability cannot be enlarged and the section can.not be permitted to embrace any adoption which has been validly made before the commencement of the Act. The legislature did not intendto change the incident or characteristic of a goda datta adoption, which made the position of the adopted person in that form, nothing higher than that of adignified employee engaged to perform rites and enjoy the privileges for the timehe continued to be such a son. Or it may be that the legislature inadvertently lift thecustom of revocability of goda datta adoption untouched by s. 15. Ineither view of the matter cancellation, of the adoption of the appellant made by the respondent, by the registered document, is in accordance with the custom of goda datta and hence, there is no violation of the law contained in s. 15. [47 C-G] Per Mathew, J; (dissenting) (1) The custom of goda datta adoption has been abrogated by s. 4(1) read with s. 5 of the Act and s. 30 saves only the effect ;and validity of an adoption made before the Act. But it is difficult to think how a custom revoking such an adoption could continue in force after the custom of making the adoption in that form has been abrogated by the Act, because, the continuance of the custom of cancellation was dependent upon the continuance of the custom of making the adoption, [35B-D] (2)The Act provides only for the method and form of adoption after the cominginto force of the Act and it has made no provision for cancellation of an adoption except in s. 15. Assuming that s. 15 relates only to an adoption made after the commencement of the Act, unless the right to cancel the adoption under the custom become an. accrued right before the commencement of the Act, the -custom of cancelling an adoption would not continue. Therefore, if the adoption wants to cancel such an adoption after the commencement of the Act he can do so only by establishing that he had an accrued right on the date of adoption or, at any rate, before the abrogation of the custom to cancel it, in which case, the ,custom to cancel the adoption would be deemed to continue for cancelling it notwithstanding the fact that, as custom, it has ceased to operate after the commencement of the Act. The effect of the abrogation of the custom can be equated in principle to the repeal of a law. [35E-H] (3)That apart, the legislature has saved by s. 30 only an adoption made, before the Act, its validity and effect. When the legislature has, chosen to make a specific provision to save only the validity and the effect of adoptions already made,, (-which would have been saved even without such a provision under the ,general principle of law notwithstanding the abrogation of the custom) the inference is that the legislature did-not want to save the right to cancel the adoption. The express saving in s. 30 of only the validity and effect of adoption can only lead to the. conclusion that the legislature did not want to save the incident of revocability attached to it by custom. Expression facit cessare tacitum. [36C-F] JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1466 of
1970.
Appeal from the judgment and decree dated the 16th April
1970 of the Gujarat High Court in Appeal No. 744 of 1961.
V. S. Desai, R. M. Hazarnavis, R. N. Dhebar, K. L. Hathi
and J. R. Nanavati, for the appellant.
S. T. Desai, D. D. Vyas and I. N. Shroff, for the
respondent.
The majority view was expressed by P. N. Bhagwati, J. and N.
L. Untwvalia, J. in separate judgments. K. K. Mathew, J.
delivered a dissenting opinion.
MATHEW, J.-The question is, whether an adoption made in
“Goda Datta” form, a customary mode of adoption, before the
passing of the Hindu Adoptions and Maintenance Act, 1956
(hereinafter called the ‘Act’), could be cancelled or
revoked after its commencement.
35
The relevant provisions of the Act have been considered in
the judgment of my learned brother Untwalia, J. and he has
come to the conclusion that the custom of Goda Datta
adoption has been abrogated by s. 4(1) read with s. 5 of the
Act, and that s. 30 saves only the validity and effect of
adoption made before the Act. I agree with these
conclusions. I will also assume that s. 15 deals only with
cancellation of adoption made after the Act. Even so, I
cannot agree with his ultimate conclusion that the adoption
made in the instant case could be cancelled after the Act
came into force.
Since the custom of adoption in Goda Datta form has been
abrogated by virtue of s. 4(1) read with s. 5 of the Act, 1
do not think that the custom to cancel or revoke an adoption
in that form could continue after the commencement of the
Act. It is difficult to think how a custom of revoking an
adoption in Goda Datta form could continue in force after
the custom of making adoption in that form has been
abrogated by the Act. The continuance of the custom of
cancellation of Goda Datta adoption was dependent upon the.
continuance of the custom of making adoption in that form,
With the abrogation of the custom of adoption in that form
by s. 4 (1) read with s. 5 of the Act, the custom of
cancellation also stood abrogated. I cannot understand how
one limb of that custom could survive the destruction of the
other as both the customs were inseparably intertwined.
The Act provides only for the method and form of adoption
after the coming into force of the Act. It has made no
provision for cancellation of adoption except in s. 15
which, I will assume, relates only to adoption made after
the commencement of the Act. Yet, I do not think that the
custom of cancellation of adoption in Goda Datta form could
continue after the custom of making adoption in that form
has ceased to operate after the commencement of the Act. In
other words, although there is no separate provision in the
Act for cancelling an adoption made before the commencement
of the Act, it is difficult to imagine how any legislature
could provide for the continuance of the custom of
cancellation, which is an incident of the custom of adoption
in that form, without continuing in force the custom of
adoption in that form.
What then is the effect of the abrogation of the custom of
cancelling adoption in Goda Datta form along, with the
custom of adoption in that form ? I should have thought the
question could admit of only one answer and that is that the
adoption cannot be cancelled after the commencement of the
Act, unless the right to cancel the adoption under the
custom became an accrued right before the commencement of
the Act. Therefore, if the adopter wanted to cancel an
adoption in Goda Datta form after the commencement of the
Act, he could do so only by establishing that he had an
accrued right on the date of the adoption or, at any rate,
before the abrogation of the custom, to cancel it, in which
case, the custom to cancel the adoption would be deemed to
continue for cancelling it, notwithstanding the fact that,
as custom, it has ceased to operate after the commencement
of the Act. In principle, the effect of abrogation of the
custom of cancelling an adoption is much the same as the
repeal of a law. The past operation
36
of the custom would be wiped out except as to rights
accrued. A right to take advantage of the custom of
cancelling an adoption, like the right to take advantage of
a provision of law providing for cancelling an adoption, is
not an accrued right. “There is no presumption that an Act
is not intended to interfere with existing rights. Most
Acts of Parliament, in fact, do interfere with existing
rights”(1) In order to raise the presumption, the right must
be an acquired, accrued or vested right. Before the Act
came into operation and when the custom was in force, an
adaptor could have cancelled the adoption by taking ad-
vantage of the custom and that was certainly a right to take
advantage of the custom. But the question is, when the Act
abrogated the custom, whether it was an accrued or acquired
right in order to raise the presumption that the legislature
did not intend to interfere with it.
That apart, the legislature has saved by s. 30 only adoption
made before the Act, its validity and effect; the
revocability of an adoption which does not pertain either to
its validity or effect has not been saved. Even if the
legislature had not provided in s. 30 for saving adoption
already made, its validity and effect being accrued rights,
would have been saved under the general principle of law,
notwithstanding the abrogation of the custom of adoption in
Goda Datta form by the Act in the absence of any provision
to the contrary in the Act. But when once the legislature
has chosen to make a specific provision and to save only the
validity and effect of adoptions already made, the inference
is that the legislature did not want to save the right to
cancel the adoption. Nothing was more easy for the
legislature, if it wanted to save any other right attaching
to adoption already made, than to say so expressly as it has
done with respect to its validity and effect. The express
saving in s. 30 of only the validity and effect of adoption
can only lead to the conclusion that the legislature did not
want to save the incident of revocability attaching to it by
custom. Expressum tacit cessarc tacitum. Seeing that the
legislative policy was to put a stop to the custom of
cancelling adoption, I need have no qualms in presuming that
Parliament did not want to save the right to cancel adoption
by s. 30.
I would allow the appeal without any order as to costs.
BHAGWATI, J. I agree with the conclusion reached by my
learned brother Untwalia, J., but I would prefer to give my
own reasons in support of that conclusion.
The question that arises for determination in the appeal is
whether an adoption in the Goda-datta form made before the
passing of the Hindu Adoption and Maintenance Act, 1956
(hereinafter referred to as the Act) can be cancelled after
the coming into force of that Act. What is a Goda-datta
form of adoption and what are its incidents has been
discussed in the judgment of my learned brother Untwalia,
J., and I need not repeat what has been so ably and lucidly
explained there. Suffice it to state that the Goda-datta-
form of adoption is a customary form prevalent in
Vallabhkul; neither dutta-homam nor actual giving and taking
is necessary for making such adoption; it does
(1) see per Buckley L.J. in West v. Gwyppe. (1911) 2 Ch. 1
at 12.
37
not sever the relationship of the adopted with his natural
family an he continues to be entitled to his lights in that
family; he can be taken in this form of adoption in more
families than one and such adoption can be cancelled at any
time by the adopter or the adoptee at his sweet will. If,
therefore, the Act had not come into force, there can be no
doubt that according to custom the goda-dutta form of
adoption could be cancelled by the adopter at any time he
liked. The question is : Has the enactment of the Act made
any difference ?
Three sections of the Act are material, namely, Sections 4,
15 and 30. I will first turn to section 15. That section
provides :”No adoption which has been validly made can be
cancelled by the adoptive father or mother, or any other
person, nor can the adopted child renounce his or her status
as such and return to the family of his or her birth.” My
learned brother Untwalia, J., has analysed the scheme of the
Act and shown that section 15 applies only to an adoption
which has been validly made in accordance with the
provisions of the Act after its commencement and it has no
application to an adoption made prior to the coming into
force of the Act. I agree so entirely with him in this
interpretation of section 15 that I do not think it
necessary to add anything to what he has said in this
connection. I only wish to point out that section 30, on
the construction which I place upon it, reinforces this
interpretation of section 15. Section 30 enacts a saving
provision. It says : “Nothing contained in this Act shall
affect any adoption made before the commencement of this
Act, and the validity and effect of any such adoption shall
be determined as if this Act had not been passed.” My
learned brother Untwalia, J., has taken the view with which
my learned brother Mathew, J., has agreed, that the second
part of this section merely clarifies what is embodied in
the first and the first part does not go beyond saving
merely the validity and effect of an adoption made before
the commencement of the Act. I have tried hard but I find
it difficult to persuade myself to accept this
interpretation of the section. I do not think it would be
right to read the second part of the section as controlling
the first. It is the first part of the section which enacts
the main saving provision and the second part is merely a
provision introduced ex abundantau citela, with a view to
emphasising that the validity and effect of an adoption made
before the commencement of the Act shall remain untouched by
the provisions contained in the Act and be determined as if
the Act had not been passed. It would not be legitimate to
cut down the width and amplitude of the first part of the
section by reference to the second part. It is clear from
the plain and unambiguous language of the first part of the
section that the legislature intended to exclude the
applicability of all provisions contained in the Act to an
adopting made before the commencement of the Act and not
merely the applicability of those provisions which affect
the validity and effect of such adoption. If such had been
the intention of the legislature, it would have used
appropriate language, such as “nothing contained in this Act
shall affect the validity and effect of any adoption “,
instead of enacting a saving provision employing wide and
all embracing language not limited merely to validity and
effect. Therefore, merely because validity and effect are
specifically dealt with in the second part
38
of the section it cannot detract from the generality of the
saving provision enacted in the first part. The second part
of the section has no restrictive effect on the first part.
I must, therefore, proceed to consider the true meaning and
effect of the first part of the section uninhibited by the
provision in the second part. The first part of the section
says that nothing contained in the Act and that would
include section 15-shall affect any adoption made prior to
the commencement of the Act. But what is the meaning and
connotation of the word “affect’. When section 15 provides
that an adoption once made shall not be cancelled, does it
‘affect’ an adoption already made which is subject to the
incident of revocability ? Now, even if the word ‘affect’
were to be interpreted to mean alter or ‘influence’ or ‘have
impact on’ there can be no doubt that section 15 would
‘affect’ such adoption because it would destroy one incident
of such adoption, namely, its revocability. But I do not
think that in the context in which the word ‘affect’ is
used, it- means ‘alter’ or ‘influence’ or ‘have impact on’
The word ‘-affect’ is a word of wide import and in the
context in which it occurs it must be construed to mean
“touch” or “relate to” or ” concern.” The legislative
intent, as manifest in the first part of the section,
clearly is that nothing contained in the Act shall touch or
apply to an adoption made prior to- the commencement of the-
Act. I am fortified in giving this meaning to the word
‘affect’ by the decision of the High Court of Australia in
Shanks v. Shanks. (1) There the question was whether a
decree dismissing a petition for dissolution of a marriage
could be said to be judgment which ‘affects’ the status of
any person under the laws relating to marriage or divorce
within the meaning of section 35(1) (a) (3) of the Judiciary
Act, 1903. The ,argument was that a decree graduating
dissolution of marriage would be a judgment effecting the
status of the parties to the marriage, but a decree
dismissing a petition for dissolution of marriage would not
be, as it would leave the status of the parties untouched.
This argument was rejected by the High Court of Australia.
Mr. Justice MeTierman gave the following meaning of the word
‘affects’ as used in section 35(1) (a) (3) :
“If the word “affects” in sec. 35 means, as
the respondents contend, alters, the appeal
against the decree dismissing the appellant’s
petition would not lie as of right, because it
is clear that the decree does not alter theappellant
‘s
status : See Needham v. Bremner.”(2
)………..In its ordinary usage
“affects” is a synonym for touching, orrelating
to, or concerning. In my opinion the word has
that meaning in the context of sec. 35. This
section should be construed as conferring the
most ample jurisdiction that the fair meaning
of the words will allow. In a suit for
divorce the status of the parties is involved
and the decree, whether it allows or
refuses
the petition, touches the status of the
parties. In the case of C. v. M. (3 )it was
said in terms that the decree the subject of
that appeal involved a question of
(1) 65 C.L.R. 334.
(2) (1866) L.R. 1 C.P. 583, at p. 585.
(3) (1885) 10 Sup. Cal. 171 at p. 177.
39
.lm15
the appellant’s status. If the word “affects” is read as
meaning relating to or touching, then sec. 35 gives a right
of appeal both from a decree of divorce and a decree
refusing a divorce-. In Bleeze v. Fopp(1) the judgment of
the Supreme Court was in effect that the respondent should
not be made bankrupt. Griffith C.J. said : “The Judgment
affects the status of the respondent within sec. 35.”
The same meaning must be given to the word ‘affect, in the
present case. So construed, it is clear that what section
30 enacts is that nothing contained in the Act-and that
includes section 15-shall touch or concern or, in other
words, apply to an adoption made prior to the Act. Section
15, therefore, is confined in its application to an,
adoption made subsequent to the Act and it does not place an
embargo, on cancellation so far as an adoption prior to the
Act is concerned. If, therefore, such an adoption could be
cancelled by the adopter prior to the commencement of the
Act, the right of the adopter to cancel it is not taken away
by section 15.
Then, does section 4 have such an effect. The only relevant
part of section 4 to which I need refer is clause (a) which
is in the following terms :
“Save as otherwise expressly provided in this Act,
(a) 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 this Act shall cease to have
effect with respect to any matter for Which
provision is made in this Act.”
The intendment and effect of section 4(a) is to abrogate the
existing law or custom in so far as it is replaced by the
law enacted in the statute. if there is a provision made in
the statute which operates on the same area as the existing
law or custom, the statutory provision must prevail and the
existing law or custom must give way : it must be taken to
be superseded or, to use the language of section 4 (a), it
was to cease to be in force, because then the matter would
be governed by the statutory provision and not-by the
existing law or custom. If, therefore, section 15 were
applicable to an adoption made prior to the Act, it would
govern the ‘matter’ of cancellation of such adoption and any
existing law or custom providing to the contrary would cease
to be in force and no longer apply. But as discussed above,
section 15, on its proper interpretation, applies only to an
adoption made after the commencement of the Act, and
therefore, so far as the matter relating to cancellation of
an adoption made before the Act is concerned, any existing
law or custom making provision in that behalf cannot be said
to have been abrogated by reason of section 4(a). Such
existing law or custom would continue in force and apply so
as to govern the ‘matter’ of cancellation of adoption made
before the commencement of the Act.
(1) (1911) 13 C.L.R. 324.
40
That being the true legal position, let us see how it
applies in the present case. Here there was, prior to the
commencement of the Act, the custom of Goda-datta adoption
and the Goda-datta adoption could, according to custom, be
cancelled by the adopter at any time he liked. The custom
of Goda-datta adoption ceased to be in force on the
commencement of the Act by virtue of section 4(a) since
provision was made in various section of the Act laying down
the conditions and requirements for making an adoption. See
section 5 to 1 1. No Goda-datta adoption could, therefore,
be made after the commencement of the Act according to
custom and consequently no question of its cancellation
could arise. But where a goda-datta adoption was made
before the Act, the custom gave a right to the adopter to
cancel the adoption at his sweet will and this custom. in
so far as it operated on Goda-datta adoption made prior to
the Act. did not cease to be in force under section 4(a) as
section 15 did not make provision in regard to ‘matter’ of
cancellation of such adoption. It was, however, contended
on behalf of the appellant that the custom OIL Goda-datta
adoption had two limbs, one relating to the making of the
adoption and its effect and the other providing for its
revocability at the option of the adopter or the adoptee and
a question was posed : if the first limb is destroyed, how
can the second survive ? Both limbs of the custom, according
to the appellant, must perish as soon as the custom came to
an end on the commencement of the Act. This argument,
though apparently attractive, is, in my opinion, not sound
and suffers from the fault of over simplification. It is of
course true that the custom of Goda datta adoption ceased to
be in force on the commencement of the Act and, therefore,
in so far as it concerned adoption to be made subsequent to
the Act, the second limb of the custom came to an end with
the first, because if no Goda-datta adoption could be made
after the commencement of the Act, there could be no
question of its cancellation. If the first limb of the
custom was gone, there could be no Goda-datta adoption on
which the second limb could operate. But where under the
first limb of the custom a Goda-datta adoption was already
made, the second limb would not have to depend for its
survival on the continuance of the first. There would in
such a case be a Goda-datta adoption on which the second
limb of the custom could operate and in relation to such
Goda-datta adoption. the second limb of the custom would be
the law in force. That could not be said to be abrogated by
section 4(a), since neither section 15 nor any other section
of the Act made any provision in regard to the ‘matter’ of
cancellation of an adoption made prior to the Act. The
second limb of the custom relating to revocability of Goda-
datta adoption, therefore, continued in force in its
application- to Godadatta adoption made prior to the Act and
the enactment of the Act did not have the effect of putting
an end to it. The Goda-datta adoption made before the Act
was, therefore, revocable by the adopter at his sweet will
even after the commencement of the Act.
I, therefore, agree with my learned brother Untwalia, J.,
that the appeal should be dismissed with no order as to
costs.
41
UNTAWALIA, J. In this appeal filed by the defendant
appellant on grant of a certificate of fitness by the High
Court of Gujarat under Article 133 (1) (c) of the
Constitution of India as it stood before the Constitution
(Thirtieth Amendment) Act, 1972 one of the important
questions concerns the interpretation of Sections 4, 15 and
30 of the Hindu Adoptions and Maintenance Act, 1956-
hereinafter called the Act. The two parties to the suit
giving rise to this appeal are the descendants of Shri
Vallabhacharya Maharaja, the original founder of Suddh
Adauit Pushti Marg. He flourished about 500 years ago. The
family of the descendants aforesaid is known as Vallabhkul.
Many of such descendants are working as Acharyas of various
temples and shrines in Gujarat and other places. They are
generally known as Goswamis, Acharyas or Maharajas. Their
Offices are known as “Gadis”.
Maharaj Purshotamlalji Raghunathlalji was the Maharaj of
Junagadh Haveli of Gujarat. He died on 11th September, 1955
leaving behind a widow and four daughters. He had no son.
The plaintiff respondent was the widow and she was the only
heir of the deceased Maharaj and was called Vahuji Maharaj
Shri Chandraprabha. According to the case of the respondent
she had engaged Daniraiji Urajlalji the appellant in this
case for doing the puja of the God which he was performing
as the representative of the respondent. ‘Tilak’ ceremony
was done in order to inform the Vaishnav devotees about the
appointment of the appellant for doing puja.
Murlidharlalji-the older brother of the appellant, was
pressing the respondent to take him in adoption. But since
the appellant was an orphan-his parents being dead earlier
he could not be adopted. No ceremony of giving and taking
had taken place. No other ceremony as required under the
Hindu Law for a valid adoption was performed. The
respondent filed the suit on the 14th of April, 1958
claiming relief of declaration that the appellant was not
the legally adopted son of deceased Purshotamlalji. About 3
months after the institution of the suit the respondent made
a written declaration on the 17th of July, 1958 stating that
the adoption in question had never taken place and that even
if, it was believed that it had taken place it stood
revoked. The declaration aforesaid, which was registered
also with the Registrar of Documents, in Ext. 292 in the
case. The appellant and his guardian were made aware of
this declaration before their written statement was filed on
the 15th August, 1958.
The appellant’s case has been that the respondent adopted
him Is per their family custom on the 18th March, 1956.
Such ceremonies as were required to be performed as per the
custom of the family were gone through. The customary
adoption in the family is known either as “Goda Datta” or
“Goda”. The appellant had also challenged in his written
statement the respondent’s right to revoke the said adoption
because according to the family custom, adoption of Goda
Datta once made could not be revoked.
Although in their statement and in the particulars of the
custom which were supplied on behalf of the appellant on
being asked to do
42
so, only one type of customary adoption was indicated) in
evidence attempt was made on his behalf to show that the
custom recognized two types of adoptions-one known as “Goda
Datta” and the other as “Samanya Goda”.
Voluminous oral and documentary evidence was adduced by the
parties at the trial. The Trial Judge decreed the suit and
held as under
(1) That the appellant was adopted according
to the custom of the family.
(2) That there was only one type of
customary adoption and the same was known as
“Goda Datta” or shortly as “Goda”.
(3) That adoption of the type of Goda Datta
was revocable unilaterally by either of the
parties and that such
revocation was in fact made by the
respondent.
The Trial Judge negatived the contention put forward on
behalf of the appellant that the alleged revocation having
been brought about during the pendency of the suit, no
relief could be given to the respondent on its basis.
The defendant filed an appeal in the Gujarat High Court.
The plaintiff filed a cross-objection to challenge certain
findings of the Trial Judge recorded against her specially
in regard to the factum of adoption. But in view of the
voluminous and unimpeachable evidence in the case, the
matter was not pursued in the High Court on behalf of the
respondent. Learned counsel for the appellant in the High
Court urged six points in support of the appeal enumerated
in the judgment of the High Court as follows
(1) “That the defendant has satisfactorily
proved that there are two types of
customs in the family, namely, “Goda Datta”
and “Samanya Goda” and that the adoption which
is made in accordance with “Goda Datta” type
of customs is irrevocable.
(2) That assuming that there is only one
type of custom as contended by the plaintiff,
the plaintiff has failed to prove that the
adoption which is made by that custom is
revocable at the instance of either of the
parties.
(3) That looking to the deposition of
defandant’s witness Lalan Krishna Shastri,
even if it is believed that the customary
adoption in question is revocable, it may be
revoked only on some reasonable grounds and
since the plaintiff in this case has not
revoked this adoption on any reasonable
ground, the said revocation is not legally
operative.’
(4) That at any rate, the declaration found
at Exhibit 292 by which the revocation is said
to have been
43
made, does not legally revoke the adoption in
as much as it does not admit the fact of
adoption of the defendant.
(5) That on proper construction of sections
4 and 15 of the Hindu adoption and Maintenance
Act of 1956, the custom in question was no
longer in force on the day of the alleged
revocation and, therefore, revocation in
accordance with that custom could not have
been legally made by the plaintiff. According
to Mr. Nanavati, the adoption validly made
before the application of the said Act becomes
absolute and irrevocable as a result of
section 15 of the Act.
(6)That the prayer for declaration that the
defendant is not adopted cannot be granted in
view of the fact that the alleged revocation
has been made by the plaintiff only after the
institution of the suit.”
The High Court has taken pains to discuss and scan the
points urged on behalf of the appellant before it, and
answered all of them against him.
Mr. V. S. Desai appearing on behalf of the appellant in this
Court finding it difficult to press and pursue all the
points urged in the High Court gave up points 1 and 2 and
faintly pressed point no. 6 but ultimately gave up that too.
He, however, urged point nos. 3, 4, and 5 for our acceptance
and laid great stress on the 5th point which is a pure
question of law and a ticklish one. Mr. S. T. D. Desai,
learned counsel for the respondent submitted that there was
no substance in any of the points urged on behalf of the
appellant and the judgment of the High Court was fit to be
upheld in every respect.
I, therefore, proceed to discuss the three questions falling
for determination in this appeal on the footing that there
has been only one type of custom of adoption in Vallabhkul
known as Goda Datta and the custom recognized the
revocability of such adoption. According to the said custom
the adoption could be revoked and annulled at the instance
of either party, namely, the adoptor or the adoptee.
The contention put forward on behalf of the appellant that
revocation could be made only on some reasonable grounds and
the custom required it to be so is not sound. The edifice
for such an argument was built on the statement in the
evidence of the defendant’s witness Lalan Krishna Shastri
who stated that adoption could be revoked on “Sapeksha”
reasons. The witness did not explain the meaning of,
“Sapeksha”. In my opinion in the context it meant that
adoption Could be revoked unilaterally on the sweet will or
volition of either party. Such an interpretation is
consistent with the other pieces of, evidence in the case
referred to in the judgment of the courts below. No reason
was necessary to be stated or proved to sustain the revo-
cation.
44
The 4th point for the appellant has also no substance. In
the deed of cancellation Ext. 292 the respondent first
asserted that she had not taken the appellant in adoption on
15-3-1956 or at any time. But if the statement that she had
taken Shri Daniraiji-the appellant–in adoption was believed
to be true, she was cancelling and annulling that adoption.
In my opinion the High Court has rightly rejected the 4th
contention put forward on behalf of the appellant as being
without force.
Coming to the 5th and the only point of importance in the
case I find that the High Court has over-ruled this
contention on two grounds-(1) “neither section 4 nor section
15 of the Act is retrospective in its operation and, if
these sections are construed in their proper perspective, it
would appear that they refer to these adoptions which have
come into existence after the application of the Act.” and
(2) that the right of revocation of a Goda Datta adoption is
one of its effects and is saved by section 30 of the Act.
In my opinion the High Court is not right in deciding this
point against the appellant on the second ground nor is it
quite accurate in the statement of law with reference to
section 4 and 15 of the Act. 1, however, uphold the decision
of the High Court in this regard too but for different
reasons.
Section 30 is a saving clause in the Act and says “Nothing
contained in this Act shall affect any adoption made before
the commencement of this Act, and the validity and effect of
any such adoption shall be determined as if this Act had not
been passed.” The second part of the section merely.
clarifies what is embodied in the first ‘Part. The
provisions of the Act are not to affect any adoption made
before its commencement. That is to say the validity of the
adoption made before the commencement of the Act as also its
effect will have to be examined and determined with
reference to the law or the custom as it stood prior to the
coming into force of the Act and not in accordance with it.
The expression “affect any adoption” necessarily means
affect an adoption as to its “validity and effect.” Neither
of the expressions takes within its sweep any of the other
incidents or characteristics of the law or the custom of
adoption under which it was made. It is to be noticed that
almost the entire field in relation to any adoption was
covered in its validity and effect. Yet something remained
outside it. The custom of revocability of adoption at the
instance of either party in the Goda Datta form was one such
matter. Under the Hindu Law even as it stood before coming
into force of the Act “A valid adoption once made cannot be
cancelled by the adoptive father or the other parties
thereto, nor can the adopted son renounce his status as such
and return to his family of birth” vide section 493 at page
556 of Mulla’s Hindu Law (Fourteenth Edition). Departure
from this general law was permissible in very rare type of
customs–Goda Datta being one such. The incident or
characteristic of this custom which entitled either party to
revoke the adoption was not a matter concerning the validity
and the effect of adoption.
Several judgments of courts were produced as evidence to
prove the custom of Goda Datta, its effect and incidents.
One such judgment
45
was Ext. 277 dt., 16th October, 1930 of Kania, J as he then
was in suit no. 2019 of 1923. Dealing with one of the
points which arose in the suit, the learned Judge said.
“The evidence of the plaintiff and Laxmishankar, an
Upadhyaya (a priest Who directs the performance of all
religious ceremonies), proves the following principal points
of difference between the two adoptions :-In a Godh adoption
there was no physical giving or taking of the boy and no
religious ceremonies were necessary. An orphan could be
taken in adoption and similarly if the last male
representative of a Gadi and his widow were dead, the
trustees managing the Gadi could take a person in adoption.
Again this adoption could be cancelled at the option of
either the adopted son or the adoptive parents, and that so
long as the Godh-adoption continued the adopted boy
performed the funeral and obsequial ceremonies of the
adoptive parents only. The person taken in Godh-adoption
did not lose his rights in the family of his birth and
continued to perform the funeral And obsequial ceremonies of
his natural parents and relations. Moreover the person
taken in Godh-adoption in one family could be further taken
in a Godh-adoption by an altogether different family
unconnected with the first and instances of this kind were
mentioned by Laxmishankar in his evidence (See ex. 3). I
accept the evidence of the plaintiff and Laxmishankar on
these points. Bearing these fundamental differences in mind
it is clear that such a Godhadoption is a pure creature of
custom and not of law. As a Godhadoption could be cancelled
at the option of either party the position of the adopted
person was nothing higher than that of a dignified employee
or licensee engaged to perform the rites and enjoy the pri-
villages for the time he continued to be such a son. Such
an adoption had absolutely no religious significance or
merit and fell far short of even an ordinary contract
between the parties. By reason of such an adoption the
adopted person did not lose any right and the fact that be
could be adopted in two or three families unconnected with
each other showed that it was only a secular arrangement
without any religious efficacy attached thereto.”
Even if Section 15 of the Act which prohibits cancellation
of adoption once validly made were to apply to an adoption
made prior to coming into force of the Act, it would not
affect that adoption, its validity or effect. Instead of
affecting the adoption it would not permit it to be
affected. In my judgment, therefore, the main ratio of the
decision of the High Court in this regard based upon section
30 of the Act is not correct.
Section 4 of the Act reads as follows
Save as otherwise expressly provided in this Act,
(a) 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 this Act shall cease to have
effect with respect to any matter for which
provision is made in this Act;
46
(b) any other law in force immediately
before the commencement of this Act shall
cease to apply to Hindus in so far as it is
inconsistent with any of the provisions
contained in this Act.”
We are concerned with clause (a). In the Act, provision has
been made in Chapter II, sections 5 to 17 in regard to
various matters in relation to adoption. Section 5(1) says
“No adoption shall be made after the commencement of this
Act by or to a Hindu except in accordance with the
provisions contained in this Chapter, and any adoption made
in contravention of the said provisions shall. be void.”
Section 6 prescribes requisites of a valid adoption.
Section 7 and 8 provide for capacity of a male or female
Hindu to take in adoption. Sections 9 and 10 deal with
persons capable of giving in adoption and persons who may
be adopted. The other conditions for a valid ,adoption are
enumerated in section 11. Section 12 provides for the
effects of adoption. Section 15 reads as follows : “No
adoption which has been validly made can be cancelled by the
adoptive father or mother or any other person, nor can the
adopted child renounce his ,or her status as such and return
to the family of his or her birth.”
Any custom or usage as part of the Hindu Law in force prior
to the commencement of the Act has ceased to have effect in
regard to any matter for which ‘provision has been made in
Chapter 1 1, except what has been expressly provided in the
Act, such as, clauses (iii) and (iv) of section 10. The
custom of Goda Datta no longer exists. No adoption could be
made in the, Goda Datta form after coming into force of the
Act and hence there would be no question of its revocation.
Section 4 is clearly prospective and not retrospective. If
section 15 prohibits cancellation of adoption validly made
even prior to the ,commencement of the Act, then it is
manifest that section 4 finishes the custom of cancellation
after the commencement of the Act, by a prospective
operation and not by any retroactive action. If the cancel-
lation would have been made before coming into force of the
Act, neither section 4 nor section 15 had any retrospective
operation to annul such cancellation. The act of
cancellation in this case coming into existence after the
commencement of the Act, the whole and sole question which
falls for determination is whether the cancellation of the
adoption of the appellant by the respondent by Ext. 292 was
in contravention of section 15 of the Act. I fit was so,
the cancellation was invalid and could not be saved by
section 30. If not, the cancellation was good and operative
on its own force and not as being saved by section 30.
The difficulty in interpreting the language of section 15
arises be-cause of the fact that it merely says “No adoption
which has been validly made can be cancelled……….. The
Legislature, if I may say so, has omitted to use some more
words in the section to express its intention clearly. It
says neither “adoption which has been validly made after the
commencement of the Act” nor “adoption which has been
validly made either before or after the commencement of the
Act.” In such a situation it becomes the duty of the court
to supply the gap and read the intention of the Legislature
in the context of the
47
other provisions contained in the Act. It would bear
repetition to say that the law contained in the 15th section
of the Act was by and large the- law prevalent before its
commencement. Exceptions were very rare as in the case of
Goda Datta. Did the Legislature intend to finish a part of
that custom by providing in the 15th section against cancel-
lation of the adoption ? Or, did it intend to say that only
the adoption which has been validly made in accordance with
the provisions of the Act could not be cancelled ?
In my considered judgment section 15 applies to an adoption
which hays been validly made- in accordance with the
provisions contained in Chapter 11 of the Act and after its
commencement. It does not do away with the incident and
characteristic of revocability of the custom of Goda Datta.
Whole of Chapter 11 deals with the regulation of adoption
made after the commencement of the Act. The effects of
adoption provided in the 12th section are undoubtedly the
effects of adoption made in accordance with the Act.
Section 13 says that ” an adoption does not deprive the
adoptive father or mother of the power to dispose of his or
her property by transfer inter vivos or by will.” It does
induce some change in the Hindu Law as it existed before the
commencement,of the Act, but obviously in respect of an
adoption made thereafter. The presumption as to registered
documents relating to adoption provided for in section 16
does relate to a registered document recording an adoption
made after the commencement of the Act. In the context and
the set up of the 15th section of the Act it is difficult to
enlarge its scope and permit it to embrace any adoption
which has been validly made before the commencement of the
Act. In my view the Legislature did not intend to change
the incident or characteristic of a Goda Datta adoption,
which made the position of the adopted person in the words
of Kania, J “nothing higher than that of a dignified
employee, or licensee engaged to perform the rites and enjoy
the privileges for the time he continued to be such a son.”
It may be that the Legislature inadvertently left the custom
of revocability of Goda Datta adoption untouched by the 15th
section of the Act. In either view of the matter I am
constrained to hold that the cancellation of adoption of the
appellant made by the respondent by the registered document
dated 17th July, 58 Ext. 292 in accordance with the custom
of Goda Datta under which the adoption had been made was not
rendered illegal or invalid for the alleged infraction of
section 15 of the Act. There was no violation of the law
contained in that section.
For the reasons stated above I would dismiss the appeal and
confirm the decree of the High Court. No order as to costs.
ORDER
In accordance with the Judgments of the majority, the appeal
is dismissed with no order as to costs.
The order appointing Receiver is discharged.
V.P.S.
48