{"id":227681,"date":"2006-12-11T00:00:00","date_gmt":"2006-12-10T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/bhimashya-and-ors-vs-smt-janabi-janawwa-on-11-december-2006"},"modified":"2016-10-30T15:30:45","modified_gmt":"2016-10-30T10:00:45","slug":"bhimashya-and-ors-vs-smt-janabi-janawwa-on-11-december-2006","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/bhimashya-and-ors-vs-smt-janabi-janawwa-on-11-december-2006","title":{"rendered":"Bhimashya And Ors vs Smt. Janabi @ Janawwa on 11 December, 2006"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Bhimashya And Ors vs Smt. Janabi @ Janawwa on 11 December, 2006<\/div>\n
Author: . A Pasayat<\/div>\n
Bench: Dr. Arijit Pasayat, Lokeshwar Singh Panta<\/div>\n
           CASE NO.:\nAppeal (civil)  5689 of 2006\n\nPETITIONER:\nBhimashya and Ors\n\nRESPONDENT:\nSmt. Janabi @ Janawwa\n\nDATE OF JUDGMENT: 11\/12\/2006\n\nBENCH:\nDr. ARIJIT PASAYAT & LOKESHWAR SINGH PANTA\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T
\n(Arising out of S.L.P (C) No. 26558 of 2005)<\/p>\n
Dr. ARIJIT PASAYAT, J.\n<\/p>\n
\tLeave granted.\n<\/p>\n
\tChallenge in this appeal is to the judgment rendered by a
\nlearned Single Judge of the Karnataka High Court dismissing
\nthe Second Appeal filed by the appellants who are defendants
\nin the suit filed by the respondent as plaintiff. In the impugned
\njudgment the High Court held that the stand taken by the
\ndefendants that defendant No.1 was the adopted son of one
\nFakirappa, was not established. However, it granted relief in
\nrespect of property at item No.3 in the schedule to the plaint,
\nwhich the first Appellate Court had held to be ancestral
\nproperty of Fakirappa. High Court held that the said property
\nis the self acquired property of defendant No.1 and the plaintiff
\nis not entitled to any share in the said property. The parties
\nare described in the manner they were arrayed in the suit filed
\nby the plaintiff.\n<\/p>\n
\tThe factual position, in a nutshell, is as follows:\n<\/p>\n
\tThe plaintiff filed the suit for partition and separate
\npossession of her half share in the suit properties and for
\nmesne profits averring that one Fakirappa, the propositus died
\non 19.3.1965.  He had two wives, namely: Bhimawwa, the first
\nwife and Basawwa, the second wife.  Basawwa, died about 35
\nyears before filing of the suit. Fakirappa had two daughters
\nnamely, Kallawwa, who was born to Bhimawwa, the first wife
\nand Janabi, the plaintiff who was born to the second wife
\nBasawwa. The said Kallawwa is the wife of defendant No.1
\nwhile defendants 2 and 3 are the sons of defendant No.1.  It is
\nfurther averred that the suit properties are the ancestral and
\njoint family properties and since Fakirappa died leaving
\nbehind the plaintiff and the wife of the defendant No.1 and
\ndefendant Nos. 2 and 3 are the sons of the 1st defendant, after
\nthe death of Fakirappa, the plaintiff is entitled to half share in
\nthe suit schedule properties.\n<\/p>\n
\tThe defendant No.1 resisted the suit by filing the written
\nstatement averring that the defendant No.1 is the validly
\nadopted son of the deceased Fakirappa.  He has been wrongly
\ndescribed in the plaint. Fakirappa and his wife, Bhimawwa
\nhad validly adopted the defendant No.1 on 28.3.1960 by
\nobserving and performing all the necessary customary and
\nreligious ceremonies including giving and taking and they have
\nalso executed a registered adoption deed in favour of the
\ndefendant No.1. Suit house properties were not of the
\nownership of the deceased Fakirappa. They are the self
\nacquired properties of defendant No.1 and the plaintiff cannot
\nclaim any share in the same. Averment made in the plaint that
\nthe plaintiff is the daughter of Fakirappa through the second
\nwife, is not correct and the plaintiff is put to strict proof of the
\nsame.  Since the death of Fakirappa, the defendants have been
\nin exclusive possession and enjoyment of the suit properties
\nopenly and without anybody’s obstruction as exclusive owners
\nthereof. The plaintiff has been ousted from the enjoyment of
\nthe suit properties since the death of Fakirappa. The plaintiff
\nhaving not taken any step towards asserting her right in
\nrespect of the suit properties is not entitled to any relief in the
\nsuit.\n<\/p>\n
\tThe trial Court framed 11 issues and came to hold that
\ndefendant No.1 is the adopted son of Fakirappa.  The present
\nappeal does not relate to the other issues and, therefore, we
\nare not dealing with those issues in detail. Questioning the
\nconclusion of the trial Court that defendant No.1 was the
\nadopted son of Fakirappa, an appeal was filed. The First
\nAppellate Authority held that the claim of adoption of
\ndefendant No.1 is untenable and even when there was a
\nregistered deed of adoption, the same was of no consequences
\nand the adoption, if any, had no sanctity in the eye of law. It
\nalso held that the property described as Item No.3 was
\nancestral property.  The defendants preferred an appeal under
\nSection 100 of the Code of Civil Procedure, 1908 (in short ‘the
\nCPC’) questioning correctness of the First Appellate Court’s
\nconclusions.  The High Court, by the impugned judgment, as
\nnoted above, granted partial relief.\n<\/p>\n
\tSo far as the question of adoption is concerned, it was
\nheld that appellant No.1 was married to the daughter of
\nFakirappa, the adoption was claimed to have been made on
\n28.3.1960 and the adoption deed was registered on 31.3.1960
\nwhich was at a time when The Hindu Adoption and
\nMaintenance Act, 1956 (in short ‘the Act’) was in operation.
\nThe defendant No.1 was more than 15 years of age and,
\ntherefore, could not have been adopted and, therefore, his
\nadoption, if any, cannot be recognized in law. Relief was
\ngranted in respect of Item No.3 property.\n<\/p>\n
\tIn support of the appeal, learned counsel for the
\nappellant submitted that though the Act was in operation
\nwhen the adoption took place, it is really of no relevance
\nbecause according to the customs prevalent in the area and
\nthe families of appellants, the adoption is clear, legal and
\nproper.\n<\/p>\n
There is no appearance on behalf of the respondent in
\nspite of notice.\n<\/p>\n
It is to be noted that no issue regarding custom was
\nframed by the Trial Court. But because of the finding recorded
\nby the trial Court, the First Appellate Court dealt with it.  The
\nHigh Court has categorically noticed that there was no
\npleading regarding custom and no evidence in that regard was
\nled. Learned counsel for the appellant, with reference to
\ncertain observations made by the Trial Court, submitted that
\nthe question was very much in the minds of the parties and
\nthough no specific issue was framed, yet, the evidence laid
\nclearly established the claim regarding adoption. It is
\nsubmitted that judicial notice can be taken note of the fact
\nthat in the area to which the parties belong there is no
\nprohibition on adoption in the manner done and it is
\nrecognized and permissible under the custom to make an
\nadoption, as has been done in the present case.\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<\/p>\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:\n<\/p>\n
Provided that the rule is certain and not
\nunreasonable or opposed to public policy; and<\/p>\n
Provided further that, in the case of a rule
\napplicable 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 (Hindu Code) Article
\n3 provides as follows:\n<\/p>\n
“Article 3-(1) A male Hindu, who has
\nattained the age of discretion and is of sound
\nmind, may adopt a son to himself provided he
\nhas no male issue in existence at the date of
\nadoption.\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
Therefore, prior to the enactment of the Act also adoption
\nof a son during the lifetime of a male issue was prohibited and
\nthe position continues to be so after the enactment of the Act.
\nWhere 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 1850), as the outcast son does not retain the religious
\ncapacity to perform the obsequies 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. The
\nquestion, therefore, is whether by custom, the prohibition
\ncould be overcome. Relevant provisions, therefore, is whether
\nby custom as defined in the Hindu Code are as follows:\n<\/p>\n
‘”Custom defined : – Custom is an established
\npractice at variance with the general law.\n<\/p>\n
Nature of custom – A custom varying the
\ngeneral law may be a general, local, tribal or
\nfamily custom.\n<\/p>\n
Explanation 1. – A general custom 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 called a
\nspecial custom.\n<\/p>\n
Custom cannot override express law.<\/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) Such 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 HS. Gour’s Hindu Code, Volume I.\n<\/p>\n
Fifth Edition.)<\/p>\n
Custom must be ancient, certain and reasonable as is
\ngenerally said. It will be noticed that in the definition in Cl. (a)
\nof Section 3 of the Act, the expression ‘ancient’ is not used,
\nbut what is intended is observance of custom or usage for a
\nlong time. The English rule that a ‘custom, in order that it may
\nbe legal and binding, must have been used so long that the
\nmemory of man runneth not to the contrary’ has not been
\nstrictly applied to Indian conditions. All that is necessary to
\nprove is that the custom or usage has been acted upon in
\npractice for such a long period and with such invariability and
\ncontinuity as to show that it has by common consent been
\nsubmitted to as the established governing rule in any local
\narea, tribe, community, group of family. Certainty and
\nreasonableness are indispensable elements of the rule. For
\ndetermination of the question whether there is a valid custom
\nor not, it has been emphasized that it must not be opposed to
\npublic policy.\n<\/p>\n
The origin of custom of adoption is lost in antiquity. The
\nancient Hindu law recognized twelve kinds of sons of whom
\nfive were adopted. The five kinds of adopted sons in early
\ntimes must have been of very secondary importance, for, on
\nthe whole, they were relegated to an inferior rank in the order
\nof sons. Out of the five kinds of adopted sons, only two survive
\ntoday; namely, the Dattaka from prevalent throughout India
\nand the Kritrima for confined to Mithila and adjoining
\ndistricts. The primary object of adoption was to gratify the
\nmeans of the ancestors by annual offerings and, therefore, it
\nwas considered necessary that the offerer should be as much
\nas possible a reflection of a real descendant and has to look as
\nmuch like a real son as possible and certainly not be one who
\nwould never have been a son. Therefore, the body of rules was
\nevolved out of a phrase of Saunaka that he must be the
\nreflection of a son. The restrictions flowing from this maxim
\nhad the effect of eliminating most of the forms of adoption.
\n(See Hindu Law by S.V. Gupta. Third edition at pages 899 –\n<\/p>\n
900). The whole law of Dattaka adoption is evolved from two
\nimportant texts and a metaphor. The texts are of Manu and
\nVasistha, and the metaphor that of Saunaka. Manu provided
\nfor the identity of an adopted son with the family into which he
\nwas adopted. (See Manu Chapter IX, pages 141142, as
\ntranslated by Sir W. Jones). The object of an adoption is
\nmixed, being religious and secular. According to Mayne, the
\nrecognition of the institution of adoption in early times had
\nbeen more due to secular reasons than to any religious
\nnecessity, and the religious motive was only secondary; but
\nalthough the secular motive was only dominant, the religious
\nmotive was undeniable. The religious motive for adoption
\nnever altogether excluded the secular motive. (See Mayne’s
\nHindu Law and Usage, Twelfth Edition, page 329.).\n<\/p>\n
As held by this Court in V.T.S. Chandrashekhara
\nMudalier v. Kulandeivelu Mudalier (AIR 1963 SC 185),
\nsubstitution of a son for spiritual reason 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 was
\nobserved by this Court that under the Hindu Law adoption is
\nprimarily a religious act intended to confer spiritual benefit on
\nthe adopter and some of the rules have, therefore, been held to
\nbe mandatory, and compliance with them regarded as a
\ncondition of the validity of the adoption. The first important
\ncase on the question of adoption was decided by the Privy
\nCouncil in the case of Amarendra Mansingh v. Sanatan Singh,
\n(AIR 1933 PC 155). The Privy Council said:\n<\/p>\n
“Among the Hindus, a peculiar religious
\nsignificance has attached to the son through
\nBrahminical influence, although in its origin
\nthe custom of adoption was perhaps purely
\nsecular. The texts of the Hindus are
\nthemselves instinct with this doctrine of
\nreligious significance. The foundation of the
\nBrahminical doctrine of adoption is the duty
\nwhich every Hindu owes to his ancestors to
\nprovide for the continuance of the line and
\nsolemnization of the necessary rites.”\n<\/p>\n
With these observations it decided the question before it,
\nviz. that 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 most
\nof the cases motive is religious the secular motive is also
\ndominant 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
\nAmerendra Mansingh’s case (supra) has reiterated the well
\nestablished doctrine as to the religious efficacy of sonship, as
\nthe foundation of adoption. The emphasis 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 need to be satisfied, was not allowed to
\nadopt for herself. But in either case it is a condition precedent
\nfor a valid adoption that he should be without any male issue
\nliving at the time of adoption.\n<\/p>\n
Under the old law, ‘male issue’ was indicated and it was
\nheld at it was to be taken in the wide sense peculiar to the
\nterm in Hindu Law to mean three direct descendants in the
\nmale line. (See Mayne’s Hindu Law and Usage referred to
\nabove at page 334).  Even if for the sake of argument in the
\ninstant case, it is accepted that a custom was prevalent
\nauthorising adoption in the presence of a male issue, yet it
\nbeing contrary to the very concept of adoption cannot be said
\nto have any force. Adoption is made to ensure spiritual benefit
\nfor a man after his death. Public policy is not defined in the
\nAct. However, it connotes some matter which concerns the
\npublic good or the public interest. No strait-jacket formula can
\nbe laid down to hold what is for the public good or for the
\npublic interest, or what would be injurious or harmful to the
\npublic good or public interest. What is public good must be
\ninconsonance with public conscience. Speaking about ‘public
\npolicy’, Lord Atkin said, “the doctrine should only be invoked
\nin clear cases in which the harm to the public is substantially
\nincontestable, and does not depend upon the idiosyncratic
\ninference of a few judicial minds. (See Fender v. St. John
\nMildmay 1938 AC 1). The observations were quoted with
\nconcurrence in Gherulal v. Mahadeo Das, (AIR 1959 SC 781).
\nThough it cannot be disputed as a general proposition that a
\ncustom may be in derogation of Smriti law and may supersede
\nthat law where it is proved to exist, yet it is subject to the
\nexception that it must not be immoral or opposed to public
\npolicy and cannot derogate from any statute unless the statute
\nsaves any such custom or generally makes exception in favour
\nof rules of customs.  (See: Mulla’s Principles of Hindu Law,
\nFifteenth Edition, at pages 67-68).  Nothing has been shown to
\nme that an exception of this nature existed in the old Hindu
\nLaw. The ancient texts provide for a custom, but imperate it
\nnot to be opposed to Dharma, that means as already pointed
\nout it should not be immoral and opposed to public interest.\n<\/p>\n
It is well established principle of law that though custom
\nhas the effect of overriding law which is purely personal, it
\ncannot prevail against a statutory law, unless it is thereby
\nsaved expressly or by necessary implication. (See
\nThe Magistrate of Dunbar v. The Duchess of Roxburgha (l835)
\n6 ER 1642), Noble v. Durell (1789)100 ER 569).  A custom may
\nnot be illegal or immoral; but it may, nevertheless, be invalid
\non the ground of its unreasonableness. A custom which any
\nhonest or right-minded man would deem to be unrighteous is
\nbad as unreasonable. [See: Paxton v. Courtnay (1860)2 F & F\n<\/p>\n
131)].\n<\/p>\n
In Mookka Kone v. Ammakutti Ammal (AIR 1928 Mad
\n299 (FB), it was held that where custom is set up to prove that
\nit is at variance with the ordinary law, it has to be proved that
\nit 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.\n<\/p>\n
A custom is a particular rule which has existed either
\nactually or presumptively from time immemorial, and has
\nobtained the force of law in a particular locality, although
\ncontrary to or not consistent with the general common law of
\nthe realm. A custom to be valid must have four essential
\nattributes.  First, it must be immemorial; secondly, it must be
\nreasonable; thirdly, it must have continued without
\ninterruption since its immemorial origin, and, fourthly, it must
\nbe certain in respect of its nature generally as well as in
\nrespect of the locality where it is alleged to obtain and the
\npersons whom it is alleged to affect. (See HALSBURY, 4th Edn.,
\nVol. 12, para 401, p.2 & para 406, p.5).\n<\/p>\n
Is a law not written, established by long usage, and the
\nconsent of our ancestors?  No law can oblige a free people
\nwithout their consent: so wherever they consent and use a
\ncertain rule or method as a law, such rule etc., gives it the
\npower of a law and if it is universal, then it is common law: if
\nparticular to this or that place, then it is custom.  Custom is
\none of the main triangles of the laws of England; those laws
\nbeing divided into Common Law – Statute Law, and Custom.
\nIndia is a land where there are very many customs appropriate
\nto certain areas of territory; families or castes.\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 so long that the
\nmemory of man runneth not to the contrary” should not be
\nstrictly applied to Indian Conditions.  (See Thakur Gokalchand
\nv. Parvin Kumari AIR<\/a> 1952 SC 231).\n<\/p>\n
“A custom is local Common Law. It is Common Law
\nbecause it is not Statute Law; it is Local Law because it is the
\nlaw of a particular place, as distinguished from the general
\nCommon Law.  Local Common Law is the law of the country
\n(i.e., particular place) as it existed before the time of legal
\nmemory” (per Jessel, M.R., Hammerton v. Honey, 24 WR 603).\n<\/p>\n
Custom implies, not that in a given contingency a certain
\ncourse would probably be followed, but that contingency has
\narisen in the past and that a certain course has been followed,
\nand it is not at all within the province of Courts to extend
\ncustom by the process of deduction from the principles which
\nseem to underline customs which have been definitely
\nestablished.\n<\/p>\n
Custom is authoritative, it stands in the place of law, and
\nregulates the conduct of men in the most important concerns
\nof life: fashion is arbitrary and capricious, it decides in matters
\nof trifling import: manners are rational; they are the
\nexpressions of moral feelings. Customs have more force in a
\nsimple state of society.\n<\/p>\n
Both practice and custom are general or particular but
\nthe former is absolute, the latter relative; a practice may be
\nadopted by a number of persons without reference to each
\nother; but a custom is always followed either by imitation or
\nprescription: the practice of gaming has always been followed
\nby the vicious part of society; but it is to be hoped for the
\nhonour of man that it will never become a custom.\n<\/p>\n
There was no specific plea relating to custom though
\nsome vague and indefinite statements have been made in the
\nplaint and that too in a casual manner. No issue was framed
\nand no evidence was laid to prove custom.\n<\/p>\n
That being so, the High Court’s order does not suffer
\nfrom any infirmity to warrant interference. The appeal fails
\nand is dismissed but, in the circumstances, without any order
\nas to costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Bhimashya And Ors vs Smt. Janabi @ Janawwa on 11 December, 2006 Author: . A Pasayat Bench: Dr. Arijit Pasayat, Lokeshwar Singh Panta CASE NO.: Appeal (civil) 5689 of 2006 PETITIONER: Bhimashya and Ors RESPONDENT: Smt. Janabi @ Janawwa DATE OF JUDGMENT: 11\/12\/2006 BENCH: Dr. ARIJIT PASAYAT & LOKESHWAR SINGH PANTA […]<\/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-227681","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nBhimashya And Ors vs Smt. 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