{"id":147052,"date":"2008-03-04T00:00:00","date_gmt":"2008-03-03T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/salekh-chand-dead-by-lrs-vs-satya-gupta-and-ors-on-4-march-2008"},"modified":"2015-04-14T22:57:29","modified_gmt":"2015-04-14T17:27:29","slug":"salekh-chand-dead-by-lrs-vs-satya-gupta-and-ors-on-4-march-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/salekh-chand-dead-by-lrs-vs-satya-gupta-and-ors-on-4-march-2008","title":{"rendered":"Salekh Chand (Dead) By Lrs vs Satya Gupta And Ors on 4 March, 2008"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Salekh Chand (Dead) By Lrs vs Satya Gupta And Ors on 4 March, 2008<\/div>\n
Author: . Arijit Pasayat<\/div>\n
Bench: Dr. Arijit Pasayat, P. Sathasivam<\/div>\n
           CASE NO.:\nSpecial Leave Petition (civil)  1380 of 2002\n\nPETITIONER:\nSalekh Chand (Dead) by Lrs\n\nRESPONDENT:\nSatya Gupta and Ors\n\nDATE OF JUDGMENT: 04\/03\/2008\n\nBENCH:\nDr. ARIJIT PASAYAT & P. SATHASIVAM\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T <\/p>\n
CIVIL  APPEAL NO.               OF 2008
\n(Arising out of SLP (C.) No. 1380 of 2002)<\/p>\n
Dr. ARIJIT PASAYAT, J<\/p>\n
1.\tSecond appeal filed by the defendants having been allowed
\nby the learned Single Judge of the Allahabad High Court one of
\nthe plaintiffs Salekh Chand has filed this appeal.  The legal
\nheirs of the another plaintiff Om Prakash who died on
\n28.2.1998 (proforma respondent No.4) have been impleaded in
\nthis appeal. Om Prakash’s widow   Smt. Ram    Kumari   died
\non 2.6.1999 and, therefore, their son Munna Lal is proforma
\nrespondent no.4.\n<\/p>\n
2.\tBackground facts in a nutshell are as follows:\n<\/p>\n
  A suit filed by the plaintiffs Om Parkash and present
\nappellant Salakh Chand was dismissed by learned Additional
\nCivil Judge, Ghaziabad in Suit No.699\/84.  Learned Additional
\nDistrict Judge, Ghaziabad reversed the judgment and decree
\ndated 5.3.1990 by judgment and decree dated 22.2.1998.  The
\nplaint averments refer to the following facts:\n<\/p>\n
\tOm Prakash and Salekh Chand filed Suit No.699 of 1984
\nagainst Smt. Satya Gupta and one Brijesh Kumar.  Shiv Om
\nBanshal and Mahendra Kumar Banshal (Respondent Nos. 2
\nand 3 in this appeal) were impleaded as defendant nos.3 and\n<\/p>\n
4.  The plaint allegations were that House no.104 (old number)
\nwith its new numbers 175 and 176 described in the plaint
\nbelonged to one Pares Ram who had four sons namely,
\nJagannath, Dina Nath, Anand Swaroop and Battu Mal.  The
\npedigree was as follows:<\/p>\n
\n\n\n\nPEDIGREE\n\nPARES RAM\n\n|\t\t\t\t|\t\t\t\t|\t\t\t|\nJagannath \t\t     Dina Nath\t\t\tAnand Swaroop\tBattu Mal\n       |\t\t\t(died issue-less)\t\t\t|\t\n     | \t\t\t\t\t\t\t\t|\nChandra Bhan\t\t\t\t\tSurendra Kumar\n(adopted son)\t\t\t\t\t\t        (son)\n\n\nSmt. Shanti Devi\n\n<\/pre>\n
\t\t\t\t\t\t_________________________________________
\n\t\t\t\tChawali Devi\t\tSatya Gupta\t\tBrijesh Kumar
\n\t\t\t\t(widow)\t\t(daughter)\t\t(adopted son)
\n\t\t\t\t\t\t\tdefendant no.1\tdefendant no.2<\/p>\n
\tDina Nath died issue-less out.  During his lifetime he had
\nsold his 1\/4th share to Battu Mal.  Surendra Kumar and his
\nmother (widow of Anand Swaroop) had sold their 1\/4th share
\nto Smt. Satya Gupta by registered sale-deed.  Brijesh Kumar
\ndefendant no.2 is the adopted son of Battu Mal. On the death
\nof Jagannath his son Chandra Bhan succeeded to share of
\nJagannath in the suit property.  On the death of Chandra
\nBhan his widow succeeded to the suit property. She executed
\na sale-deed dated 26.7.1979 of her share in the suit property.
\nThus the plaintiffs are co-sharers of 1\/4th share in the suit
\nproperty whereas defendant nos.1 and 2 are co-sharers of 3\/8
\nshare each in the suit property. It is alleged that Jagannath
\nhad no issue. He had adopted Chandra Bhan who happens to
\nbe the son of his real sister and the sister’s husband’s name
\nwas also Jagannath. Ceremony of adoption was performed in
\naccordance with the customs of the community prevalent
\namong the parties in the month of Flagun Samvat 1985. There
\nwas a custom in the community of the co-sharers to adopt
\nsister’s son and Smt. Shanti Devi was wife of Chandra Bhan.
\nThe plaintiffs wanted to get the suit property partitioned and
\nhave their separate 1\/4th share in the suit property. On the
\nabove pleadings the relief claimed was that the suit property
\nbe partitioned by metes and bounds and the plaintiffs be given
\npossession on the separate share allotted to them.\n<\/p>\n
Defendant no.2 did not file any written statement and
\nsuit against him proceeded ex-parte.\n<\/p>\n
Defendant no.1 (present respondent no.1) and
\ndefendant nos. 3 and 4 contested the suit by filing separate
\nwritten statements.  Defendant no.1 in her written statement
\ndenied the claim of the plaintiffs and it was pleaded that
\nplaintiff no.1 Om Prakash was tenant of Smt. Chawali Devi
\non part of the land of the disputed property at the rate of
\nRs.65\/- per month as rent.  He inducted plaintiff no.2 as
\nsubtenant.  Smt. Chawali Devi, mother of defendant no.1
\nSmt. Satya Gupta succeeded to the share of Chawali Devi in
\nthe suit property.    She filed suit no.31 of 1985 for ejectment
\nof the plaintiffs, which was then pending.  The family
\npedigree was accepted subject to the correction that Chandra
\nBhan and Shanti Devi were wrongly shown as son of
\nJagannath and widow of Chandra Bhan. Jagannath died
\nissueless.  Likewise Battu Mal had not adopted any son,
\nBrijesh Kumar, and defendant no.2 Brijesh Kumar was not
\nadopted son of Battu Mal. At the time of his death, Battu Mal
\nwas owner of the entire suit property and on his death his
\nwidow Smt. Chawali Devi became owner in possession and
\non Chawali Devi’s death, defendant no.l Smt. Satya Gupta
\nbeing her daughter became owner in possession of the entire
\nsuit property. The plaintiffs and other defendants have no
\nshare in the suit property. The sale-deed executed by Smt.
\nShanti Devi in favour of the plaintiffs is null and void.
\nJagannath had not adopted Chandra Bhan son of his sister
\nand according- to the Hindu custom in ‘Vaishya’ community
\nsister’s son cannot be adopted. No such custom was
\nprevalent in the ‘Vaishya’ community of Hapur. Hence the
\nalleged adoption was illegal. Jagannath died issueless about
\n50 years back and on his death Dina Nath, Anand Swaroop
\nand Battu Mal alias Jagat Swaroop became owners in
\npossession by survivorship and their names were mutated in
\nthe Municipal records on the application moved by Dina
\nNath and Battu Mal in the year of 1935. Thereafter Battu
\nMal has purchased the share of Dina Nath and Anand
\nSwaroop and thus Battu Mal became sole owner of the suit
\nproperty. Relevant entries were made in the Municipal
\nrecords for the assessment years 1946-51. Battu Mal was
\nmurdered. One Surendra Kumar and Smt. Basanti Devi had
\nno share in the suit property.  But in order to avoid any
\ndispute defendant Satya Gupta had purchased 1\/2 share
\nfrom Surendra Kumar and Smt. Basanti Devi. Battu Mal had
\nnever adopted Brijesh Kumar and Brijesh Kumar is son of
\none Shambhu Saran who was distantly related to Battu Mal.
\nBrijesh Kumar was sentenced to life imprisonment for
\ncommitting the murder of Battu Mal in the year 1956 and
\nthus Brijesh Kumar was not entitled to succeed to the
\nproperty of Battu Mal.  One Sri Hari Shanker Bansal (father
\nof Defendants no. 3 and 4) was tenant of Smt. Chawali Devi
\non part of the suit property for about last 25 years and he
\nhad constructed one pucca room on the land under his
\ntenancy.  Plaintiff No.1, Om Prakash was also given 7 x 7 feet
\nland of suit property on rent by Smt. Chawli Devi on which a
\ntemporary wooden Khokha was kept by Om Prakash in
\nwhich he was doing Crockery and Shamiyana business.  It
\nwas also pleaded that Smt. Chawali Devi executed a will
\ndated 21.6.1962 in favour of Defendant 1 in respect to her
\nentire property. She died on 23.5.1980 and on her death
\ndefendant no.1 filed Testamentary Suit No.1\/81 in the High
\nCourt on the basis of the will dated 21.6.1962 and she was
\ngranted Letters of Administration on 9.4.1984.  Defendant
\nno.1 is in possession of the suit property for last about 20
\nyears and her name is entered in the Municipal Records as
\nowner of the disputed property.  Plaintiffs never objected to
\nit.  The answering defendant sold by a registered sale deed
\nproperties to Bansals (Defendants Nos. 3 & 4) and they are
\nnecessary parties to the suit.\n<\/p>\n
Defendants Nos. 3 & 4 in their written statements
\nadopted the pleadings of defendant no.1 and categorically,
\nalleged that according to the Hindu custom sister’s son
\ncannot be adopted, hence alleged adoption of Chandra Bhan
\nby Jagannath was against law.\n<\/p>\n
Plaintiffs filed replication in which it was reiterated that
\nin the Township of Hapur, where Jagannath, Anand Swaroop
\netc. lived, there was a custom prevalent among Vaish
\ncommunity to adopt son of sister. It was also pleaded that
\nsince only Battu Mal lived in Ghaziabad, he got his name
\nmutated in the Municipal Records. In the sale deed executed
\nby Surendra Kumar and Basanti Devi in favour of defendant
\nNo.l’s 1\/4th share is shown to have been sold as 1\/3rd share
\nto defendant no. l .\n<\/p>\n
On the pleadings of the parties, the trial court framed a
\nnumber of issues. Relevant issues are issues nos.1 and 2
\nwhich were as follows:\n<\/p>\n
1.\tWhether a custom was prevalent in Vaish community to
\nvalidly adopt son of the sister?\n<\/p>\n
2.\tWhether Jagannath had legally adopted Chandra Bhan
\nas a son, if so what is its effect?\n<\/p>\n
Both the parties adduced oral as well as documentary
\nevidence.  The trial court on consideration of the evidence
\nadduced before it and also on consideration of legal position
\nrecorded finding that the plaintiffs have failed to establish that
\nJagannath had legally adopted Chandra Bhan as his son.
\nThey have also failed to establish that in the Township of
\nHapur a custom was prevalent in Vaish community, to validly
\nadopt son of sister. The trial court also recorded a finding of
\nfact that the plaintiffs have failed to establish that the
\nformalities of adoption were observed in accordance with law.
\nOn the other issue also the trial court recorded finding of fact
\nagainst the plaintiffs. The trial court accordingly dismissed the
\nsuit.\n<\/p>\n
The First Appellant Court reversed the findings and held
\nthat the custom of adoption was prevalent amongst
\ncommunity and, therefore, Chander Bhan was the legally
\nadopted son of Jagannath in the suit property and on his
\ndeath, widow of Chander Bhan had 1\/4th share in the
\nproperty. The plaintiff’s suit was accordingly decreed.  The
\nHigh Court in the second appeal formulated the following
\nquestions for determination:\n<\/p>\n
1.\tWhether the plaintiffs\/respondents have
\nsuccessfully discharged the burden of proof to
\nestablish that there existed a custom in the Vaish
\ncommunity to which the lineal descendants of Paras
\nRam belonged, to adopt the son of sister?\n<\/p>\n
2.\tWhether a Hindu belonging to the regenerated
\nclass could be adopted after performance of ‘Janeu’
\nceremony?\n<\/p>\n
3.\tWhether for proving the factum of adoption it
\nwas necessary to lead evidence of giving and taking
\nof an adopted child at the time of ceremony of
\nadoption?\n<\/p>\n
4.\tWhether recital in a document regarding
\nalleged adoption is sufficient for proving of the
\nfactum of adoption?\n<\/p>\n
3.\tThe High Court found that question no.3 as formulated
\nabove was not a substantial question of law but held that
\nthere was no prevalent custom permitting adoption of the
\nsister’s son and, therefore, the appeal was allowed.\n<\/p>\n
4.\tIn support of the appeal learned counsel for the
\nappellants submitted that the custom was established.  There
\nwas enough material to show that the family members treated
\nChander Bhan as the adopted son and, therefore, the First
\nAppellate Court’s judgment and decree should have been
\nmaintained.  It was submitted that the Trial Court and the
\nHigh Court should not have given any undue importance to
\nthe fact about the Jenau ceremony being held on the same
\nday, overlooking the fact that the evidence was being given by
\nthe witness who was more than 80 years old.  It is submitted
\nthat even if the defendants acquire any title because of the
\ntransaction with Anand Swarup his share was 1\/4th and in
\nany event the defendants cannot claim 1\/3rd share. It is
\nfurther submitted that even if the stand about the acceptance
\nof Chander Bhan as an adopted son is to be accepted, that in
\nany event do away with the requirement to prove legality of
\nadoption.  It is to be noted that the adoption took place
\nsometime in 1928-1929.\n<\/p>\n
\tIn response, learned counsel for the respondents
\nsubmitted that the custom was not established.  Evidence of
\nPWs 1, 2 and 3 did not prove existence of custom.\n<\/p>\n
\tThe rival stands need careful consideration.\n<\/p>\n
6.\tSince the alleged adoption took place prior to enactment
\nof Hindu Adoptions and Maintenance Act, 1956 (in short the
\n‘Act’), the old Hindu Law is applicable.\n<\/p>\n
It would be desirable to refer to certain provisions of the
\nAct, and the Hindu Code which governed the field prior to the
\nenactment of the Act. Section 3(a) of the Act defines ‘custom’
\nas follows
\n“3. Definitions.- In this Act, unless the context
\notherwise requires, –\n<\/p>\n
(a) the expressions, ‘custom’ and ‘usage’ signify
\nany rule which, having been continuously and
\nuniformly observed for a long time, has
\nobtained the force of law among Hindus in any
\nlocal area, tribe, community, group or family:
\nProvided that the rule is certain and not
\nunreasonable or opposed to public policy; and
\nProvided further that, in the case of a
\nrule applicable only to a family, it has not been
\ndiscontinued by the family;”\n<\/p>\n
Section 4 provides that any text, rule or interpretation of
\nHindu Law or any custom or usage as part of that law in force
\nimmediately before the commencement of the Act shall become
\ninoperative with respect to any matter for which provision was
\nmade in the Act except where it was otherwise expressly
\nprovided. Section 4 gives overriding application to the
\nprovisions of the Act.  Section 5 provides that adoptions are to
\nbe regulated in terms of the provisions contained in Chapter II.
\nSection 6 deals with the requisites of a valid adoption. Section
\n11 prohibits adoption; in case it is of a son, where the adoptive
\nfather or mother by whom the adoption is made has a Hindu
\nson, son’s son, or son’s son’s son, whether by legitimate blood
\nrelationship or by adoption, living at the time of adoption.
\nPrior to the Act under the old Hindu Law, Article 3 provided as
\nfollows<\/p>\n
“Article 3-(1) A male Hindu, who has attained
\nthe age of discretion and is of sound mind,
\nmay adopt a son to himself provide he has no
\nmale issue in existence at the adoption.\n<\/p>\n
(2) A Hindu who is competent to adopt may
\nauthorise either his (i) wife or (ii) widow (except
\nin Mithila) to adopt a son to himself.”\n<\/p>\n
Where a son became an outcast or renounced Hindu religion,
\nhis father became entitled to adopt another. The position has
\nnot changed after enactment of Caste Disabilities Removal Act
\n(XXI of l850) as the outcast son does not retain the religious
\ncapacity to perform the obsequial rites.  In case parties are
\ngoverned by Mitakshara Law, additionally adoption can be
\nmade if the natural son is a congenital lunatic or an idiot.
\nRelevant provisions relating to custom as defined in the Hindu
\nCode are as follows:\n<\/p>\n
“Custom defined.– Custom is an established
\npractice at variance with the general law.
\nNature of custom.- A custom varying the
\ngeneral law may be a general, local, tribal or
\nfamily custom.\n<\/p>\n
Explanation 1.- A general customs includes a
\ncustom common to any considerable class of
\npersons.\n<\/p>\n
Explanation 2.- A custom which is applicable
\nto a locality, tribe, sect or a family is called a
\nspecial custom.\n<\/p>\n
Custom cannot override express law –\n<\/p>\n
(1) Custom has the effect of modifying the
\ngeneral personal law, but it does not override
\nthe statute law, unless it is expressly saved by
\nit.\n<\/p>\n
(2)\tsuch custom must be ancient, uniform,
\ncertain, peaceable, continuous and
\ncompulsory.\n<\/p>\n
Invalid Custom  No custom is valid if it is
\nillegal, immoral, unreasonable or opposed to
\npublic policy.\n<\/p>\n
Pleading and proof of custom  (1) He who
\nrelies upon custom varying the general law
\nmust plead and prove it.\n<\/p>\n
(2) Custom must be established by clear and
\nunambiguous evidence.”\n<\/p>\n
(See Sir H.S. Gour’s Hindu Code Volume 1,
\nFifth Edition.)
\nCustom must be ancient, certain and
\nreasonable as is generally said.  It will be
\nnoticed that in the definition in Cl. (a) of
\nSection 3 of the Act, the expression ‘ancient’ is
\nnot used, but what is intended is observance
\nof custom or usage for a long time.  The
\nEnglish rule that ‘ a custom, in order that it
\nmay be legal and binding, must have been
\nused so long that the memory of man runneth
\nnot to the contrary’ has not been strictly
\napplied to Indian conditions.  All that is
\nnecessary to prove is that the custom or usage
\nhas been acted upon in practice for such a
\nlong period and with such invariability and
\ncontinuity as to show that it has by common
\nconsent been submitted to as the established
\ngoverning rule in any local area, tribe,
\ncommunity, group or family.  Certainty and
\nreasonableness are indispensable elements of
\nthe rule.  For determination of the question
\nwhether there is a valid custom or not, it has
\nbeen emphasized that it must not be opposed
\nto public policy.  I shall deal with the question
\nof public policy later on.\n<\/p>\n
The origin of custom of adoption assumes great
\nimportance.  The origin of custom of adoption is lost in
\nantiquity.  The ancient Hindu Law recognized twelve kinds of
\nsons of whom five were adopted.  The five kinds of adopted
\nsons in early times must have been of very secondary
\nimportance, for, on the whole, they were, relegated to an
\ninferior rank in the order of sons. Out of the five kinds of
\nadopted sons, only two survive today; namely, the. Dattaka
\nform prevalent throughout India and the Kritrima form
\nconfined to Mithila and adjoining districts. The primary object
\nof adoption was to gratify the means of the ancestors’ by
\nannual offerings and therefore it was considered necessary
\nthat the offerer should be as much as possible a reflection of a
\nreal descendant and had to look as much like a real son as
\npossible and certainly not be one who would never have been a
\nson. Therefore, the body of rules was evolved out of a phrase of
\nSaunaka that he must be ‘the reflection of a son’. The
\nrestrictions flowing from this maxim had the effect of
\neliminating most of the forms of adoption. (See Hindu Law by
\nS. V. Gupte, Third Edition at pages 899-906).  The whole law of
\nDattaka adoption is evolved from two important texts and a
\nmetaphor. The texts are of Manu and Vasistha, and the
\nmetaphor that of Saunaka. Manu provided for the identity of
\nan adopted son with the family into which he was adopted.
\n(See: Manu.Chapter IX, pages 141-142, as translated by Sir W.
\nJones). The object of an adoption is mixed, being religious and
\nsecular. According to Mayne, the recognition of the institution
\nof adoption in early times had been more due to secular
\nreasons than to any religious necessity, and the religious
\nmotive was only secondary; but although the secular motive
\nwas dominant, the religious motive was deniable. The religious
\nmotive for adoption never altogether excluded the secular
\nmotive. (See Mayne’s Hindu Law and Usage, Twelfth Edition,
\npage 329).\n<\/p>\n
As held by this Court in V.T.S. Chandrashekhara
\nMudalie v. Kulandeivelu Mudalier (AIR 1963 SC 185),
\nsubstitution of a son for spiritual reasons is the essence of
\nadoption; and consequent devolution of property is mere
\naccessory to it; the validity of an adoption has to be judged by
\nspiritual rather than temporal considerations; and, devolution
\nof property is only of secondary importance.\n<\/p>\n
In Hem Singh v.  Harnam Singh (AIR<\/a> 1954 SC 581), it
\nwas observed by this Court that under the Hindu Law
\nadoption is primarily a religious act intended to confer
\nspiritual benefit on the adopter and some of the rules have
\ntherefore been held to be mandatory, and compliance with
\nthem regarded as a condition of the validity of the adoption.
\nThe first important case on the question of adoption was
\ndecided by the Privy Council in the case of Amarendra
\nMansingh v. Sanatan Singh, AIR 1933 PC 155. The Privy
\nCouncil said
\n“Among the Hindus, a peculiar
\nreligious significance has attached
\nto the son, through Brahminical
\ninfluence, although in its origin the
\ncustom of adoption was perhaps
\npurely secular. The texts of the
\nHindus are themselves instinct with
\nthis doctrine of religious
\nsignificance. The foundation of the
\nBrahminical doctrine of adoption is
\nthe duty which every Hindu owes to
\nhis ancestors to provide for the
\ncontinuance of the line and the
\nsolemnization of the necessary
\nrites.”\n<\/p>\n
With these observations it decided the question before it, viz.,
\nthat of setting the limits to the exercise of the power of a
\nwidow to adopt, having regard to the well established doctrine
\nas to the religious efficacy of sonship. In fact the Privy Council
\nin that case regarded the religious motive as dominant and the
\nsecular motive as only secondary.\n<\/p>\n
This object is further amplified by certain observations of
\nthis Court. It has been held that an adoption results in
\nchanging the course of succession, depriving wife and
\ndaughters of their rights, and transferring the properties to
\ncomparative strangers or more remote relations. [See :  Kishori
\nLal v. Chaltibai (AIR<\/a> 1959 SC 504)]. Though undeniably in
\nmost of the cases motive is religious, the secular motive is also
\ndominantly present. We are not concerned much with this
\ncontroversy, and as observed by Mayne it is unsafe to embark
\nupon an enquiry in each case as to whether the motives for a
\nparticular adoption were religious or secular and an
\nintermediate view is possible that while an adoption may be a
\nproper act, inspired in many cases by religious motives, courts
\nare concerned with an adoption, only as the exercise of a legal
\nright by certain persons.  The Privy Council’s decision in
\nAmarendra Mansingh’s case (supra), has reiterated the well
\nestablished doctrine as to the religious efficacy of sonship, as
\nthe foundation of adoption. The emhasis has been on the
\nabsence of a male issue.  An adoption may either be made by a
\nman himself or by his widow on his behalf.  The adoption is to
\nthe male and it is obvious that an unmarried woman cannot
\nadopt.  For the purpose of adoption is to ensure spiritual
\nbenefit for a man after his death by offering of oblations and
\nrice and libations of water to the manes periodically. Woman
\nhaving no spiritual needs to be satisfied, was not allowed to
\nadopt for herself. But in either it is a condition precedent for a
\nvalid adoption that he should be without any male issue living
\nat the time of adoption.”\n<\/p>\n
6.\tIn Mookka Kone v. Ammakutti Ammal [AIR 1928 Mad
\n299 (FB)], it was held that where custom is set up to prove
\nthat it is at variance with the ordinary law, it has to be proved
\nthat it is not opposed to public policy and that it is ancient,
\ninvariable, continuous, notorious, not expressly forbidden by
\nthe legislature and not opposed to morality or public policy. It
\nis not disputed that even under the old Hindu law, adoption
\nduring the lifetime of a male issue was specifically prohibited.
\nIn addition, I have observed that such an adoption even if
\nmade would be contrary to the concept of adoption and the
\npurpose thereof, and unreasonable. Without entering into the
\narena of controversy whether there was such a custom, it can
\nbe said that even if there was such a custom, the same was
\nnot a valid custom.”\n<\/p>\n
\tIt is incumbent on party setting up a custom to allege and
\nprove the custom on which he relies.  Custom cannot be
\nextended by analogy. It must be established inductively and
\nnot by a priori methods. Custom cannot be a matter of theory
\nbut must always be a matter of fact and one custom cannot be
\ndeduced from another. It is a well established law that custom
\ncannot be enlarged by parity of reasoning.\n<\/p>\n
 \tWhere the proof of a custom rests upon a limited number
\nof instances of a comparatively recent date, the court may hold
\nthe custom proved so as to bind the parties to the suit and
\nthose claiming through and under them; but the decision
\nwould not in that case be a satisfactory precedent if in any
\nfuture suit between other parties fuller evidence with regard to
\nthe alleged custom should be forthcoming. A judgment relating
\nto the existence of a custom is admissible to corroborate the
\nevidence adduced to prove such custom in another case.
\nWhere, however a custom is repeatedly brought to the notice
\nof the courts, the courts, may hold that the custom was
\nintroduced into law without the necessity of proof in each
\nindividual case.\n<\/p>\n
Custom is a rule which in a particular family or a
\nparticular class or community or in a particular district has
\nfrom long use, obtained the force of law. Coming to the facts of
\nthe case P.W.1 did not speak any thing on the position either
\nof a local custom or of a custom or usage by the community,
\nP.W.2, Murari Lal claimed to be witness of the ceremony of
\nadoption he was brother-in-law of Jagannath son of Pares
\nRam who is said to have adopted Chandra Bhan. This witness
\nwas 83 years old at the time of deposition in the Court.  He did
\nnot speak a word either with regard to the local custom or the
\ncustom of the community. P.W.3 as observed by the lower
\nappellate Court was only 43 years’ old at the time of his
\ndeposition where as the adoption had taken place around 60
\nyears back. He has, of course, spoken about the custom but
\nthat is not on his personal knowledge and this is only on the
\ninformation given by P.W.2, Murari Lal. He himself did not
\nspeak of such a custom. The evidence of a plaintiff was thus
\ninsufficient to prove the usage or custom prevalent either in
\ntownship of Hapur and around it or in the community of
\nVaish.  The evidence of D.W.3 refers only to one instance.
\nFrom his evidence it cannot be inferred that Om Prakash had
\nadopted Munna Lal who was his real sister’s son. As already
\npointed out above, the trial court found that the evidence of
\nD.W.3 was not so clear and unambiguous as to lead to no
\nother conclusion except that Munna Lal was son of real sister
\nof Om Prakash. Besides, this solitary instance of adoption of
\nhis sister’s son cannot amount to long usage, which has
\nobtained the force of law. Mulla has categorically commented
\nthat where the evidence shows that the custom was not valid
\nin numerous instances, the custom could not be held to be
\nproved. A custom derives its force from the evidence from long
\nusage having obtained the force of law.\n<\/p>\n
          All that is necessary to prove is that usage has been
\nacted upon in practice for such a long period with such
\ninvariability as to show that it has, by consent, been
\nsubmitted so as to establish governing rules of a particular
\nlocality or community.\n<\/p>\n
 A custom, in order to be binding must derive its force
\nfrom the fact that by long usage it has obtained the force of
\nlaw, but the English rule that “a custom in order that it may
\nbe legal and binding, must have been used long that the
\nmemory of man runneth not to the contrary” should not be
\nstrictly applied to Indian conditions. All that is necessary to
\nprove is that the usage has been acted upon in practice for
\nsuch a long period and with such invariability as to show that
\nit has, by common consent, been submitted to as the
\nestablished governing rule of a particular locality.
\nA custom may be proved by general evidence as to its
\nexistence by members of the tribe or family who would
\nnaturally be cognizant of its existence, and its exercise without
\ncontroversy, and such evidence may be safely acted on when it
\nis supported by a public record of custom such as the Riwaj-i-
\nam or Manual of Customary Law.\n<\/p>\n
In yet another decision reported in Hem Singh and
\nanother v. Hakim Singh and another (AIR 1954 SC 581),  this
\nCourt observed that the custom recorded in the ‘Riwaj-i-am’ is
\nin derogation of the general custom and those who set up such
\na custom must prove it by clear and unequivocal language.
\nSimilarly, when a custom is against the written texts of the
\nHindu Law then, one who sets up such a custom must prove it
\nby a clear and unequivocal language. It may also be pointed
\nout that the settled law is that for a valid adoption, not only
\nthe person adopting should be capable of lawfully taking in
\nadoption; but the person giving must be capable of lawfully
\ngiving in adoption and the person adopted must be capable of
\nbeing lawfully taken in adoption. It is necessary that all these
\nthree conditions should be satisfied and that it is not sufficient
\nthat one of them be satisfied. In the case of Hem Singh (supra)
\nthis court quoted with approval of some of the observations in
\nMulla’s Principles of Hindu Law at Page 541 of XI Edition with
\nsuch observations in paragraph 434 to the following effect:\n<\/p>\n
“It has similarly been held that the texts which
\nprohibit the adoption of an only son, and those
\nwhich prohibit the adoption of an only son,
\nthose which enjoin the adoption of a relation in
\npreference to a stranger, are only directory;
\ntherefore, the adoption of an only son, or a
\nstranger in preference to a relation, if
\ncompleted, is not invalid; that in cases such as
\nthe above, where the texts are merely
\ndirectory, the principle of factum valet applies,
\nand the act done is valid and binding.”\n<\/p>\n
But just thereafter the following observations occurred in
\nthe same paragraph :\n<\/p>\n
“But the texts relating to the capacity to give,
\nthe capacity to take, and the capacity to be the
\nsubject of adoption are mandatory. Hence the
\nprinciple of factum valet is ineffectual in the
\ncase of an adoption in contravention of the
\nprovisions of those texts.”\n<\/p>\n
\tSo far as the evidence adduced is concerned, reliance
\nwas placed on the evidence of three witnesses.  As noted above
\nPW 1 did not speak about any custom.  Similarly, PW 2 did
\nnot speak about any custom though he claimed to be present
\nat the time of adoption.  The present appellant was PW 3. He
\nis outsider of the family.  He also accepted that he did not
\nhave personal knowledge about the custom.  He only stated
\nthat PW2 told him about the custom.  Significantly PW2 did
\nnot speak about any existence of any custom.  Appellant PW 3
\nalso accepted that he did not find out as to what was the
\ncustom if any and also that he does not know any other
\ninstance.  Though the Appellate Court had referred to evidence
\nof DW3 to hold that he had accepted that the custom was in
\nexistence.  As a matter of fact, his evidence is contrary to and
\nis specific that there was no custom. The First Appellate Court
\nhad relied on the evidence of Munna Lal to conclude that the
\nson of Reba Saran was given in adoption.  Munna Lal
\nspecifically stated that the son of Jagannath who was taken in
\nadoption is not the son of sister of Saran.\n<\/p>\n
8.\tIn view of the aforesaid factual situation and the
\nprinciples of law enumerated above, the inevitable conclusion
\nis that the appeal is sans merit, deserves dismissal, which we
\ndirect.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Salekh Chand (Dead) By Lrs vs Satya Gupta And Ors on 4 March, 2008 Author: . Arijit Pasayat Bench: Dr. Arijit Pasayat, P. Sathasivam CASE NO.: Special Leave Petition (civil) 1380 of 2002 PETITIONER: Salekh Chand (Dead) by Lrs RESPONDENT: Satya Gupta and Ors DATE OF JUDGMENT: 04\/03\/2008 BENCH: Dr. ARIJIT […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-147052","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nSalekh Chand (Dead) By Lrs vs Satya Gupta And Ors on 4 March, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/salekh-chand-dead-by-lrs-vs-satya-gupta-and-ors-on-4-march-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Salekh Chand (Dead) By Lrs vs Satya Gupta And Ors on 4 March, 2008 - 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