JUDGMENT
A. Pasayat, J.
1. In a suit for partition the question whether the original appellant Krushna (since deceased and substitute by his legal heirs) was adopted son of one Bhramar Kohali arose for consideration. Plaintiffs-respondents Nos. 1 and 2 resisted the claim made in that regard by Krushna (defendant No. 2). Non-acceptance of the plea of adoption by the trial Court has brought the claimant before this Court.
2. The only question that needs answer in this appeal is whether the claim of adoption as raised was acceptable. For answering this question a brief reference to the respective averments is necessary. The undisputed genealogy is as follows :
Sunil
_______________________________________|________________________________________
| | |
Bhramar Madhu Burundu
| _______________________|________________ |
| | | |
Anant (D.1) Gani Krushna Shyama
| |
=Bhanumati =Mandodari (D.2) Krushna(D.6)
(P2)
| (D.3) |
| |
Naran (P.1) _________|______________________________
| |
Dwija Laxmidhar
(D.4) (D.5)The plaintiffs prayed for partition of the suit properties claiming 2/9ths share in Schedule ‘A’, 1/3rd share in Schedule ‘B’ and 2/3rd share in Shedule ‘C’ properties. Krushna (defendant No. 2) claimed that he was adopted by Bhramar since his childhood in the year 1929, and was therefore entitled to half share in Schedule ‘A’ and Schedule ‘B’ properties along with the plaintiffs and defendant No. 1, defendants 3 to 5 are entitled to the remaining half share in Schedules ‘A’ and ‘B’ properties; plaintiffs and defendant No. 1 are jointly entitled to half share in
Schedule ‘C’ properties and the balance half share belongs to him. He disputed the contention of the plaintiffs that defendant No. 1 became invalid in 1940 due to shark bite and was dependent on defendant No. 2 for management of the properties left by Bhramar. The stand of defendants Nos. 3 to 5 was defendant No. 2 is the son of Bhramar and not of Madhu. In other words they opposed the plea of adoption set up by defendant No. 2. Defendants Nos. 7 to 9 supported the case of the plaintiffs and they disputed the plea of adoption set up by defendant No. 2. Defendant No. 10 is a purchaser of a portion of the suit properties from defendant No. 1 and has supported the claim of the plaintiffs. It is not disputed by the contesting parties that at the point the appellant claims to have been adopted by Bharmar, there was a living son of Bhramar named Anant (defendant No. 1). During pendency of the appeal, appellant Krushna having died was substituted by his legal representatives. During pendency of the suit Anant had died. As indicated above, the sole point for determination is whether Krishna’s adoption was valid in view of the undisputed position that at the time the alleged adoption took place Bhramar had a living son. On behalf of Krushna it was pleaded that though in law such an adoption is prohibited, yet by custom it was permissible. For adjudication of the dispute, I feel the following two questions emerge for consideration.
(i) Whether Krushna was adopted by Bhramar? (ii) Whether the adoption was valid being backed by custom though contrary to Hindu Law? 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 applicable. 3. 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; incase 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, 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 provided he has no male issue in existence at the date of the adoption.
(2) A Hindu who is competent to adopt may authorise either his (ij 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 obsequial rites. In case parties are governed by Miiakshara Law, additionally adoption can be made if the natural son is a congenital lunatic or an idiot. This is acceptedly not the situation in the present case. In this background, the adoption of Krushna by Bhramar is certainly not authorised in law. The question therefore is whether by custom, the prohibition could be overcome. It is the emphatic case of Krushna that the parties belonged to Kaibartya caste and there was a custom prevalent amongst them authorising adoption even during the lifetime of a son. Relevant provisions relating to 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 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 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 H.S. 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 Clause (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 emphasised that it must not be opposed to public policy. I shall deal with the question of public policy later on.
4. The origin of custom of adoption assumes great importance in the instant case as a custom is pleaded to overcome a prohibition. The origin of custom of adoption is lost in antiquity. The ancient Hindu Law recognised 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 899-900). 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 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 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 the Supreme Court in AIR 1963 SC 185, V.T.S. Chandrashekhara Mudalier v. Kulandeivelu Mudalier, 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.
In AIR 1954 SC 581, Hem Singh v.
Harnam Singh, it was observed by the Supreme Court that under the Hindu Law adoption is primarily a religious act intended to confer spiritual benefit on the adopter and some of the ruels 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 the Supreme Court. It has been held that an adoption results in changing the course of succession, depriving wife and daughters of their rights, and trnasferring the properties to comparative strangers or more remote relations. (See AIR 1959 SC 504, Kishori Lal v. Chaltibai). 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 Amerendra Mansingh’s case (AIR 1933 PC 155) (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 libetions of water to the manes periodically. Woman having no spiritual needs 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.
5. Under the old law, ‘male issue’ was indicated and it was held that 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. If a son is in existence to do so, adoption of another is meaningless, purposeless. Examined in the background whetehr it is opposed to public policy it also fails. 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 in consonance with public conscience. Speaking about ‘public policy’, Lord Alkin 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 1938 AC 1, In Fender
v. St. John Mildmay), the observations were quoted with concurrence in Gherulal v. Mahadeo Das, (J959) 2 SCA 342 : (AIR 1959 SC 781). Explaining the scope of the expression, and the role of the Judge, the Andhra Pradesh High Court observed that “the twin touchness of public policy are advancement of the public good and prevention of public mischief and these questions have to be decided by Judges not as men of legal learning but as experienced and enlightened members of the community representing the highest common factor of public sentiment and intelligence. (See AIR 1976 Andh Pra 112, Ratan Chand Hirachand v. Askal Nawaz Jung). 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 custom. (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.
6. It is a 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 (1835) 6 ER 1642, The Magistrate of Dunbar v. The Duchess of Roxburgha; (1789) 100 ER 569, Noble v. Durell). 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 (I860) 2 F & F 131, Paxton v. Courtnay). If the custom as pleaded in the instant case is accepted it would mean prejudicial intrusion into valuable rights of the natural son without any justifiable reason. There is bound to be diminution in his
entitlement to properties by succession, inheritance as the case may be. The custom even if accepted for the sake of argument to be existing is unreasonable, and therefore invalid.
In AIR 1928 Mad 299 (FB), Mookka Kone v. Ammakutti Ammal, 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, inveriable, 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 custom. Therefore, Krushna could not have been validly adopted by Bharamar. That being the answer to the question relating to validity of the custom, it is not necessary to decide whether in reality Krushna was adopted by Bharamar. Even if the answer to the question is in the affirmative, yet no benefit accrued to Krushna by such adoption and, therefore, the plea of the appellant that he was to be treated for all practical purposes to be the son of Bharamar fails.
7. The appeal is without any merit and is accordingly dismissed. The parties in the peculiar circumstances of the case shall bear their respective costs of this appeal.
