{"id":54202,"date":"1974-12-13T00:00:00","date_gmt":"1974-12-12T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/daniraiji-vrajlalji-junagadh-vs-vahuji-maharaj-shri-on-13-december-1974"},"modified":"2018-04-02T08:56:54","modified_gmt":"2018-04-02T03:26:54","slug":"daniraiji-vrajlalji-junagadh-vs-vahuji-maharaj-shri-on-13-december-1974","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/daniraiji-vrajlalji-junagadh-vs-vahuji-maharaj-shri-on-13-december-1974","title":{"rendered":"Daniraiji Vrajlalji, Junagadh vs Vahuji Maharaj Shri … on 13 December, 1974"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Daniraiji Vrajlalji, Junagadh vs Vahuji Maharaj Shri … on 13 December, 1974<\/div>\n
Equivalent citations: 1975 AIR 784, \t\t 1975 SCR (3)\t 32<\/div>\n
Author: K K Mathew<\/div>\n
Bench: Mathew, Kuttyil Kurien<\/div>\n
           PETITIONER:\nDANIRAIJI VRAJLALJI, JUNAGADH\n\n\tVs.\n\nRESPONDENT:\nVAHUJI MAHARAJ SHRI CHANDRAPRABHA WIDOW OFDECEASED MAHARAJ S\n\nDATE OF JUDGMENT13\/12\/1974\n\nBENCH:\nMATHEW, KUTTYIL KURIEN\nBENCH:\nMATHEW, KUTTYIL KURIEN\nBHAGWATI, P.N.\nUNTWALIA, N.L.\n\nCITATION:\n 1975 AIR  784\t\t  1975 SCR  (3)\t 32\n 1975 SCC  (1) 612\n\n\nACT:\nHindu Adoptions and Maintenance Act, (78 of 1956) Ss. 4,  15\nand 30-Goda Dutta adoption made before commencement of\tAct-\nCustom of revocability of such adoption-If affected by Act.\n\n\n\nHEADNOTE:\nSection\t 4(a)  of the Hindu Adoptions and  Maintenance\tAct,\n1956,  provides\t that  any  custom of  Hindu  law  in  force\nimmediately before the commencement of the Act, shall  cease\nto  have  effect  with\trespect\t to  any  matter  for  which\nprovision  is made in the Act.\tSection 15 provides that  no\nadoption which has been validly made can be cancelled by the\nadoptive  father  or  mother nor  can  the  adopted'  person\nrenounce  such\tstatus;\t and s.\t 30  provides  that  nothing\ncontained  in the Act shall affect any adoption made  before\nits  commencement, and, the validity and effect of any\tsuch\nadoption  shall\t be determined as if the Act  had  not\tbeen\npassed.\nThe appellant claimed that he was adopted by the  respondent\nin 1956, before the Act came into force, in the 'Goda Datta'\nform.\tThe respondent filed a suit for a  declaration\tthat\nthe  appellant\twas not so adopted, and while the  suit\t was\npending,  she made a written declaration stating,  (a)\tthat\nthe adoption had nevel taken place, and (b) that even if  it\nwas  believed that it had taken place it stood\trevocked  by\nthat  document.\t  The trial court decreed the suit  and\t the\nHigh Court confirmed the decree.\n(Per Bhagwati and Untwalia, JJ.)\nDismissing the appeal to this Court.\nHELD : An adoption in the 'goda datta' form made before\t the\ncommencement  of the Act, can be cancelled after the  coming\ninto force of that Act.\n(per Bhagwati, J.),\n(a)  Section  15 has no application to adoption\t made  prior\nto- the coming into the force of the Act.  The first part of\ns. 30 enacts the main saving provision.\t The second part  is\nmerely\ta provision introduced ex abundanti cautela  with  a\nview  to  emphasizing that the validity and  effect  of\t the\nadoption  made\tbefore\tthe commencement of  the  Act  shall\nremain\tuntouched by the provisions of the Act. it is  clear\nfrom the plain and unambiguous language of the first part of\nthe  section  that the legislature intended to\texclude\t the\napplicability  of all provisions contained in the Act to  an\nadoption  made\tbefore the commencement of the Act  and\t not\nmerely\tthe applicability of those provisions  which  affect\nthe validity and effect of such adoption.  The true  meaning\nand effect of the first part of the section, uninhibited  by\nthe provisions in the second part, is that nothing contained\nin  the\t Act  shall affect any adoption made  prior  to\t the\ncommencement  of  the Act.  The word 'affect' is a  word  of\nwide import and in the context in which it occurs it must be\nconstrued  to  mean  'touch' of 'relate\t to'  or  'concern'.\nTherefore, nothing contained in the Act shall touch or apply\nto  an adoption made prior to the commencement of  the\tAct.\nSo construed, what s. 30 enacts is that nothing contained in\nthe  Act-and that includes s. 15-shall touch or concern,  or\nin  other words apply to an adoption made prior to the\tAct.\n[37C-38D; 39C.]\n(b)  The  intendment and effect of s. 4(a) of the Act is  to\nabrogate  the  existing\t law or custom in so far  as  it  is\nreplaced  by the law enacted in the statute.  If there is  a\nprovision  made\t in the statute which operates in  the\tsame\narea  as  there\t existing  law\tor  custom,  the   statutory\nprovision  must prevail and the existing law of custom\tmust\ngive  way.   If s. 15 were applicable to  an  adoption\tmade\nprior to the Act it would govern the matter of cancellation;\nbut  the section applies only to an adoption made after\t the\ncommencement of the Act, and therefore, so far as\n33\nthe  matter  relating to cancellation of  an  adoption\tmade\nbefore\tthe  act is concerned, any existing  law  or  custom\nmaking provision in that behalf cannot be said to have\tbeen\nabrogated by reason of s. 4(a).\t Hence, if an adoption could\nbe cancelled by the adopter prior to the commencement of the\nAct,  the  right of the adopter to cancel it  is  not  taken\naway.  Such a custom enabling cancellation would continue in\nforce  and govern the matter of cancellation of an  adoption\nmade before the commencement of the Act. [39E-H]\n(c)  Prior to the commencement of the Act, by custom, a goda\ndatta adoption could be cancelled by the adopter.  The\tAct,\nin  Ss.\t 5  to\t1  1,  has  laid  down\tthe  conditions\t and\nrequirements for making an adoption.  Therefore, the  custom\nof  goda  datta\t adoption  ceases to  be  in  force  on\t the\ncommencement  of the Act by virtue of s. 4(a); that  is,  no\nsuch  adoption could be made after the commencement  of\t the\nAct  according to custom, and consequently, no\tquestion  of\nits  cancellation could arise.\tBut, where the adoption\t was\nmade before the Act, the custom gave a right to the  adopter\nto  cancel  the adoption and this custom, in so\t far  as  it\noperated  on  the adoption made prior to the  Act,  did\t not\ncease  to  be  in  force under s. 4(a),\t as  s.\t 15  is\t not\napplicable to such an adoption. [40 A-C]\n(d)  It\t is true that the custom of goda datta adoption\t has\ntwo  limbs-One\trelating to the making of adoption  and\t the\nother  providing for its revocability at the option  of\t the\nadopter.   Therefore, since the custom of such\tan  addition\nhas  ceased to be forced on the commencement of the Act,  as\nregards adoption made subsequent to the Act, the second limb\nalso  came to an end, because, if no such adoption could  be\nmade  after  the commencement of the Act there could  be  no\nquestion  of  its cancellation; but, where under  the  first\nlimb  the adoption was already made before the\tcommencement\nof the Act, the second limb would not have to depend for its\nsurvival  on the continuance of the first. in such  a  case,\nthe second limb of the custom could operate, and in relation\nto  such  an adoption, the second limb would be the  law  in\nforce.\tTherefore, the second limb of the custom relating to\nrevocability  continued in force in its application to\tsuch\nan adoption.\t\t      [40C-H]\n(Per Untwalia, J.)\n(1)  There is no substance in the contention that revocation\ncould be made only on some reasonable grounds and the custom\nrequired it to be so.  No reason was necessary to be  stated\nor proved to sustain the revocation. [43G-H]\n(2)  In\t the deed of cancellation the respondent had  stated\nthat  if it was believed that the respondent had  taken\t the\nappellant in adoption, then she was cancelling and annulling\nit.  It could not, therefore, be said that the document does\nnot legally revoke the adoption. [43A; 44A-B]\n(3)  (a)  Section  30  is a saving clause  in  the  Act\t and\naccording to it the provisions of the Act are not to  affect\nany  adoption made before its commencement, that is to\tsay,\nthe validity of the adoption made before the commencement of\nthe  Act  as also its effect will have to  be  examined\t and\ndetermined  with  reference to the law or the custom  as  it\nstood  prior to the coming into force of the Act and not  in\naccordance  with it.  The expression \"affect  any  adoption\"\nnecessarily mean; affect in adoption as to its \"validity and\neffect\".   Neither of the expression takes within its  sweep\nany of the other incidents or characteristics of the law  or\nthe custom of adoption under which it was made.\t  Therefore,\nthe incident or characteristic of this custom which entitled\neither\tparty  to  revoke  the adoption\t was  not  a  matter\nconcerning the validity and effect of adoption, and the High\nCourt was not right in holding that the right of  revocation\nis one of the effects or goda datta adoption and is saved by\ns. 30. [44D-B]\n(b)  Section 4 is clearly prospective and not retrospective.\nNo  adoption could be made in the goda datta form after\t the\ncoming\tinto  force of the Act and hence there would  be  no\nquestion of its revocation. if s. 15 prohibits\tcancellation\nof  an adoption validly made even prior to the\tcommencement\nof the Act then it is manifest that s. 4 finishes the custom\nof  cancellation  after the commencement of the\t Act,  by  a\nprospective  operation\tand not by any\tretroactive  action.\nThe question therefore, would be whether cancellation of the\nadoption  of the appellant was in contravention of s. 15  of\nthe  Act.   If it was so, the cancellation was\tinvalid\t and\ncould not be saved by s. 30. [46D-G]\n4-L379Sup CI\/75\n34\n(c)  Section 15, however, applies only to an adoption  which\nhas  been validly made in accordance with the provisions  of\nthe Act and after its commencement.  In its context and\t set\nup,  its  applicability cannot be enlarged and\tthe  section\ncan.not be permitted to embrace any adoption which has\tbeen\nvalidly made before\t the  commencement of the  Act.\t The\nlegislature did not intendto  change  the  incident   or\ncharacteristic\tof  a goda datta adoption,  which  made\t the\nposition of the adopted person in that form, nothing  higher\nthan that of adignified\t employee engaged to perform  rites\nand enjoy the privileges for the timehe\t continued to  be\nsuch a son. Or it may be that the legislature  inadvertently\nlift thecustom\tof  revocability of  goda  datta  adoption\nuntouched by s. 15. Ineither\tview   of   the\t   matter\ncancellation,  of the adoption of the appellant made by\t the\nrespondent,  by\t the registered document, is  in  accordance\nwith  the  custom  of  goda datta and  hence,  there  is  no\nviolation of the law contained in s. 15. [47 C-G]\nPer  Mathew,  J; (dissenting) (1) The custom of\t goda  datta\nadoption  has been abrogated by s. 4(1) read with s.  5\t of\nthe Act and s. 30 saves only the effect ;and validity of  an\nadoption made before the Act.  But it is difficult to  think\nhow a custom revoking such an adoption could  continue\tin\nforce  after the custom of making the adoption in that\tform\nhas  been abrogated by the Act, because, the continuance  of\nthe   custom   of  cancellation\t was  dependent\t  upon\t the\ncontinuance of the custom of making the adoption, [35B-D]\n(2)The\tAct  provides  only for the  method  and  form\tof\nadoption after the cominginto  force of the Act and  it\nhas made no provision for cancellation of an adoption except\nin  s. 15.  Assuming that s. 15 relates only to an  adoption\nmade after the commencement of the Act, unless the right to\ncancel\tthe  adoption under the custom become an.  accrued\nright  before  the commencement of the Act, the\t -custom  of\ncancelling  an adoption would not continue.   Therefore,  if\nthe  adoption  wants to cancel such an\tadoption  after\t the\ncommencement  of the Act he can do so only by  establishing\nthat he had an accrued right on the date of adoption or, at\nany rate, before the abrogation of the custom to cancel\t it,\nin  which case, the ,custom to cancel the adoption would  be\ndeemed\tto  continue for cancelling it\tnotwithstanding\t the\nfact  that,  as custom, it has ceased to operate  after\t the\ncommencement  of the Act.  The effect of the  abrogation  of\nthe  custom can be equated in principle to the repeal  of  a\nlaw. [35E-H]\n(3)That apart, the legislature has saved by s. 30 only\tan\nadoption  made,\t before the Act, its  validity\tand  effect.\nWhen  the  legislature\thas,  chosen  to  make\ta   specific\nprovision  to  save  only the validity\tand  the  effect  of\nadoptions already made,, (-which would have been saved\teven\nwithout such a provision under the ,general principle of law\nnotwithstanding the abrogation of the custom) the  inference\nis  that the legislature did-not want to save the  right  to\ncancel\tthe adoption.  The express saving in s. 30  of\tonly\nthe  validity and effect of adoption can only lead to  the.\nconclusion  that  the legislature did not want to  save\t the\nincident of  revocability  attached  to\t it  by\t  custom.\nExpression facit cessare tacitum.\n[36C-F]\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  1466  of
\n1970.\n<\/p>\n
Appeal\tfrom  the judgment and decree dated the\t 16th  April
\n1970 of the Gujarat High Court in Appeal No. 744 of 1961.
\nV.   S.\t Desai, R. M. Hazarnavis, R. N. Dhebar, K. L.  Hathi
\nand J.\t  R. Nanavati, for the appellant.\n<\/p>\n
S.  T.\tDesai,\tD.  D.\tVyas  and  I.  N.  Shroff,  for\t the
\nrespondent.\n<\/p>\n
The majority view was expressed by P. N. Bhagwati, J. and N.
\nL.  Untwvalia, J. in separate judgments.  K. K.\t Mathew,  J.
\ndelivered a dissenting opinion.\n<\/p>\n
MATHEW,\t J.-The\t question is, whether an  adoption  made  in
\n“Goda Datta” form, a customary mode of adoption, before\t the
\npassing\t of  the Hindu Adoptions and Maintenance  Act,\t1956
\n(hereinafter  called  the ‘Act’), could\t be  cancelled\tor
\nrevoked after its commencement.\n<\/p>\n
35<\/span><\/p>\n
The  relevant provisions of the Act have been considered  in
\nthe  judgment of my learned brother Untwalia, J. and he\t has
\ncome  to  the  conclusion  that the  custom  of\t Goda  Datta
\nadoption has been abrogated by s. 4(1) read with s. 5 of the
\nAct, and that s. 30 saves only the validity and effect\tof
\nadoption   made\t before\t the  Act.   I\tagree\twith   these
\nconclusions.  I will also assume that s. 15 deals only\twith
\ncancellation  of  adoption made after the Act.\tEven  so,  I
\ncannot agree with his ultimate conclusion that the  adoption
\nmade  in the instant case could be cancelled after  the\t Act
\ncame into force.\n<\/p>\n
Since  the  custom of adoption in Goda Datta form  has\tbeen
\nabrogated by virtue of s. 4(1) read with s. 5 of the Act,  1
\ndo not think that the custom to cancel or revoke an adoption
\nin  that form could continue after the commencement  of\t the
\nAct.  It is difficult to think how a custom of revoking\t an
\nadoption  in Goda Datta form could continue in\tforce  after
\nthe  custom  of\t making\t adoption  in  that  form  has\tbeen
\nabrogated  by  the Act.\t The continuance of  the  custom  of
\ncancellation of Goda Datta adoption was dependent upon\tthe.
\ncontinuance  of the custom of making adoption in that  form,
\nWith  the abrogation of the custom of adoption in that\tform
\nby  s.\t4  (1)\tread with s. 5 of the  Act,  the  custom  of
\ncancellation also stood abrogated.  I cannot understand\t how
\none limb of that custom could survive the destruction of the
\nother as both the customs were inseparably intertwined.
\nThe  Act provides only for the method and form\tof  adoption
\nafter  the  coming into force of the Act.  It  has  made  no
\nprovision  for\tcancellation  of adoption except  in  s.  15
\nwhich,\tI will assume, relates only to adoption\t made  after
\nthe  commencement of the Act.  Yet, I do not think that\t the
\ncustom of cancellation of adoption in Goda Datta form  could
\ncontinue after the custom of making adoption in that  form
\nhas ceased to operate after the commencement of the Act.  In
\nother words, although there is no separate provision in\t the
\nAct for cancelling an adoption made before the\tcommencement
\nof  the Act, it is difficult to imagine how any\t legislature
\ncould\tprovide\t for  the  continuance\tof  the\t custom\t  of
\ncancellation, which is an incident of the custom of adoption
\nin  that  form, without continuing in force  the  custom  of
\nadoption in that form.\n<\/p>\n
What  then is the effect of the abrogation of the custom  of
\ncancelling  adoption  in  Goda Datta form  along,  with\t the
\ncustom of adoption in that form ? I should have thought\t the
\nquestion could admit of only one answer and that is that the
\nadoption  cannot be cancelled after the commencement of\t the
\nAct,  unless  the  right to cancel the\tadoption  under\t the
\ncustom\tbecame an accrued right before the  commencement  of
\nthe  Act.   Therefore, if the adopter wanted  to  cancel  an
\nadoption  in Goda Datta form after the commencement  of\t the
\nAct,  he  could do so only by establishing that\t he  had  an
\naccrued\t right on the date of the adoption or, at any  rate,
\nbefore the abrogation of the custom, to cancel it, in  which
\ncase,  the custom to cancel the adoption would be deemed  to
\ncontinue  for cancelling it, notwithstanding the fact  that,
\nas  custom, it has ceased to operate after the\tcommencement
\nof  the Act.  In principle, the effect of abrogation of\t the
\ncustom\tof  cancelling an adoption is much the same  as\t the
\nrepeal of a law.  The past operation
\n36<\/span>
\nof  the\t custom\t would\tbe wiped out  except  as  to  rights
\naccrued.   A  right  to take advantage of  the\tcustom\tof
\ncancelling an adoption, like the right to take advantage  of
\na provision of law providing for cancelling an adoption,  is
\nnot an accrued right.  “There is no presumption that an\t Act
\nis  not\t intended to interfere with existing  rights.\tMost
\nActs  of  Parliament, in fact, do  interfere  with  existing
\nrights”(1) In order to raise the presumption, the right must
\nbe  an acquired, accrued or vested right.  Before  the\tAct
\ncame  into  operation and when the custom was in  force,  an
\nadaptor\t could\thave cancelled the adoption  by\t taking\t ad-
\nvantage of the custom and that was certainly a right to take
\nadvantage of the custom.  But the question is, when the\t Act
\nabrogated the custom, whether it was an accrued or  acquired
\nright in order to raise the presumption that the legislature
\ndid not intend to interfere with it.\n<\/p>\n
That apart, the legislature has saved by s. 30 only adoption
\nmade   before  the  Act,  its  validity\t and   effect;\t the
\nrevocability of an adoption which does not pertain either to
\nits  validity  or effect has not been saved.   Even  if\t the
\nlegislature  had not provided in s. 30 for  saving  adoption
\nalready made, its validity and effect being accrued  rights,
\nwould  have been saved under the general principle  of\tlaw,
\nnotwithstanding the abrogation of the custom of adoption  in
\nGoda  Datta form by the Act in the absence of any  provision
\nto  the contrary in the Act.  But when once the\t legislature
\nhas chosen to make a specific provision and to save only the
\nvalidity and effect of adoptions already made, the inference
\nis  that the legislature did not want to save the  right  to
\ncancel\tthe  adoption.\t Nothing  was  more  easy  for\t the
\nlegislature, if it wanted to save any other right  attaching
\nto adoption already made, than to say so expressly as it has
\ndone  with respect to its validity and effect.\tThe  express
\nsaving in s. 30 of only the validity and effect of adoption
\ncan only lead to the conclusion that the legislature did not
\nwant to save the incident of revocability attaching to it by
\ncustom.\t  Expressum tacit cessarc tacitum.  Seeing that\t the
\nlegislative  policy  was  to put a stop\t to  the  custom  of
\ncancelling adoption, I need have no qualms in presuming that
\nParliament did not want to save the right to cancel adoption
\nby s. 30.\n<\/p>\n
I would allow the appeal without any order as to costs.
\nBHAGWATI,  J.  I  agree with the conclusion  reached  by  my
\nlearned brother Untwalia, J., but I would prefer to give  my
\nown reasons in support of that conclusion.
\nThe question that arises for determination in the appeal  is
\nwhether\t an adoption in the Goda-datta form made before\t the
\npassing\t of  the Hindu Adoption and  Maintenance  Act,\t1956
\n(hereinafter referred to as the Act) can be cancelled  after
\nthe  coming  into force of that Act.  What is  a  Goda-datta
\nform  of  adoption  and\t what are  its\tincidents  has\tbeen
\ndiscussed  in the judgment of my learned  brother  Untwalia,
\nJ., and I need not repeat what has been so ably and  lucidly
\nexplained  there.  Suffice it to state that the\t Goda-datta-
\nform   of  adoption  is\t a  customary  form   prevalent\t  in
\nVallabhkul; neither dutta-homam nor actual giving and taking
\nis necessary for making such adoption; it does
\n(1)  see per Buckley L.J. in West v. Gwyppe. (1911) 2 Ch.  1
\nat 12.\n<\/p>\n
37<\/span><\/p>\n
not  sever the relationship of the adopted with his  natural
\nfamily an he continues to be entitled to his lights in\tthat
\nfamily;\t he  can be taken in this form of adoption  in\tmore
\nfamilies than one and such adoption can be cancelled at\t any
\ntime  by the adopter or the adoptee at his sweet will.\t If,
\ntherefore, the Act had not come into force, there can be  no
\ndoubt  that  according\tto custom  the\tgoda-dutta  form  of
\nadoption  could be cancelled by the adopter at any  time  he
\nliked.\tThe question is : Has the enactment of the Act\tmade
\nany difference ?\n<\/p>\n
Three sections of the Act are material, namely, Sections  4,
\n15  and 30. I will first turn to section 15.   That  section
\nprovides  :”No adoption which has been validly made  can  be
\ncancelled  by  the adoptive father or mother, or  any  other
\nperson, nor can the adopted child renounce his or her status
\nas  such and return to the family of his or her\t birth.”  My
\nlearned brother Untwalia, J., has analysed the scheme of the
\nAct  and shown that section 15 applies only to an  adoption
\nwhich\thas  been  validly  made  in  accordance  with\t the
\nprovisions  of the Act after its commencement and it has  no
\napplication  to\t an adoption made prior to the\tcoming\tinto
\nforce  of  the Act.  I agree so entirely with  him  in\tthis
\ninterpretation\tof  section  15\t that  I  do  not  think  it
\nnecessary  to add  anything to what he has  said  in  this
\nconnection.   I only wish to point out that section  30,  on
\nthe  construction  which I place upon  it,  reinforces\tthis
\ninterpretation\tof section 15.\tSection 30 enacts  a  saving
\nprovision.   It says : “Nothing contained in this Act  shall
\naffect\tany  adoption made before the commencement  of\tthis
\nAct, and the validity and effect of any such adoption  shall
\nbe  determined as  if this Act had not\tbeen  passed.”\tMy
\nlearned brother Untwalia, J., has taken the view with  which
\nmy  learned brother Mathew, J., has agreed, that the  second
\npart  of this section merely clarifies what is\tembodied  in
\nthe  first  and\t the first part does not  go  beyond  saving
\nmerely\tthe validity and effect of an adoption\tmade  before
\nthe  commencement of the Act.  I have tried hard but I\tfind
\nit   difficult\t to   persuade\t myself\t  to   accept\tthis
\ninterpretation of the section.\tI do not think it would\t be
\nright to read the second part of the section as\t controlling
\nthe first.  It is the first part of the section which enacts
\nthe  main saving provision and the second part is  merely  a
\nprovision  introduced ex abundantau citela, with a  view  to
\nemphasising that the validity and effect of an adoption made
\nbefore the commencement of the Act shall remain untouched by
\nthe provisions contained in the Act and be determined as  if
\nthe Act had not been passed.  It would not be legitimate  to
\ncut  down the width and amplitude of the first part  of\t the
\nsection\t by reference to the second part.  It is clear\tfrom
\nthe plain and unambiguous language of the first part of\t the
\nsection\t that  the  legislature\t intended  to  exclude\t the
\napplicability  of all provisions contained in the Act to  an
\nadopting  made\tbefore the commencement of the Act  and\t not
\nmerely\tthe applicability of those provisions  which  affect
\nthe validity and effect of such adoption.  If such had\tbeen
\nthe  intention\tof  the\t legislature,  it  would  have\tused
\nappropriate language, such as “nothing contained in this Act
\nshall  affect  the validity and effect of  any\tadoption  “,
\ninstead\t of enacting a saving provision employing  wide\t and
\nall  embracing language not limited merely to validity and
\neffect.\t  Therefore, merely because validity and effect\t are
\nspecifically dealt with in the second part
\n38<\/span>
\nof the section it cannot detract from the generality of\t the
\nsaving provision enacted in the first part.  The second part
\nof the section has no restrictive effect on the first  part.
\nI must, therefore, proceed to consider the true meaning\t and
\neffect\tof the first part of the section uninhibited by\t the
\nprovision in the second part.  The first part of the section
\nsays  that  nothing  contained in the  Act  and\t that  would
\ninclude\t section 15-shall affect any adoption made prior  to
\nthe  commencement of the Act.  But what is the\tmeaning\t and
\nconnotation of the word “affect’.  When section 15  provides
\nthat  an adoption once made shall not be cancelled, does  it
\n‘affect’  an adoption already made which is subject  to\t the
\nincident  of revocability ?  Now, even if the word  ‘affect’
\nwere to be interpreted to mean alter or ‘influence’ or ‘have
\nimpact\ton’  there  can be no doubt that  section  15  would
\n‘affect’ such adoption because it would destroy one incident
\nof  such adoption, namely, its revocability.  But I  do\t not
\nthink  that  in the context in which the  word\t‘affect’  is
\nused,  it- means ‘alter’ or ‘influence’ or ‘have impact\t on’
\nThe  word  ‘-affect’  is a word of wide import\tand  in\t the
\ncontext\t in  which it occurs it must be\t construed  to\tmean
\n“touch”\t or  “relate  to” or ”\t  concern.”  The legislative
\nintent,\t as  manifest  in the first  part  of  the  section,
\nclearly is that nothing contained in the Act shall touch  or
\napply to an adoption made prior to- the commencement of the-
\nAct.   I  am fortified in giving this meaning  to  the\tword
\n‘affect’  by the decision of the High Court of Australia  in
\nShanks\tv.  Shanks.  (1) There the question  was  whether  a
\ndecree\tdismissing a petition for dissolution of a  marriage
\ncould  be said to be judgment which ‘affects’ the status  of
\nany  person under the laws relating to marriage\t or  divorce
\nwithin the meaning of section 35(1) (a) (3) of the Judiciary
\nAct,  1903.   The  ,argument was that  a  decree  graduating
\ndissolution  of marriage would be a judgment  effecting\t the
\nstatus\tof  the\t parties  to  the  marriage,  but  a  decree
\ndismissing a petition for dissolution of marriage would\t not
\nbe,  as it would leave the status of the parties  untouched.
\nThis  argument was rejected by the High Court of  Australia.
\nMr. Justice MeTierman gave the following meaning of the word
\n‘affects’ as used in section 35(1) (a) (3) :\n<\/p>\n
\t      “If  the word “affects” in sec. 35  means,  as
\n\t      the  respondents contend, alters,\t the  appeal
\n\t      against the decree dismissing the\t appellant’s
\n\t      petition would not lie as of right, because it
\n\t      is clear that the decree does not alter theappellant
\n‘s
\n\t      status   :   See\t Needham   v.\t Bremner.”(2
\n\t      )………..In\t its   ordinary\t   usage
\n\t      “affects” is a synonym for touching, orrelating
\n\t      to, or concerning.  In my opinion the word has
\n\t      that meaning in the context of sec. 35.\tThis
\n\t      section should be construed as conferring\t the
\n\t      most ample jurisdiction that the fair  meaning
\n\t      of  the  words  will allow.   In\ta  suit\t for
\n\t      divorce the status of the parties is  involved
\n\t\t\t    and\t the decree, whether it allows\tor
\n  refuses
\n\t      the  petition,  touches  the  status  of\t the
\n\t      parties.\t In the case of C. v. M. (3 )it\t was
\n\t      said  in terms that the decree the subject  of
\n\t      that appeal involved a question of
\n(1)  65 C.L.R. 334.\n<\/p><\/blockquote>\n
(2)  (1866) L.R. 1 C.P. 583, at p. 585.\n<\/p>\n
(3) (1885) 10 Sup.   Cal. 171 at p. 177.\n<\/p>\n
39<\/span><\/p>\n
.lm15
\nthe  appellant’s status.  If the word “affects” is  read  as
\nmeaning relating to or touching, then sec. 35 gives a  right
\nof  appeal  both  from\ta decree of  divorce  and  a  decree
\nrefusing  a divorce-.  In Bleeze v. Fopp(1) the judgment  of
\nthe  Supreme Court was in effect that the respondent  should
\nnot  be made bankrupt.\tGriffith C.J. said :  “The  Judgment
\naffects the status of the respondent within sec. 35.”
\nThe  same meaning must be given to the word ‘affect, in\t the
\npresent\t case.\tSo construed, it is clear that what  section
\n30  enacts  is that nothing contained in  the  Act-and\tthat
\nincludes  section  15-shall touch or concern  or,  in  other
\nwords, apply to an adoption made prior to the Act.   Section
\n15,  therefore,\t is  confined  in  its\tapplication  to\t an,
\nadoption made subsequent to the Act and it does not place an
\nembargo, on cancellation so far as an adoption prior to\t the
\nAct is concerned.  If, therefore, such an adoption could  be
\ncancelled  by the adopter prior to the commencement  of\t the
\nAct, the right of the adopter to cancel it is not taken away
\nby section 15.\n<\/p>\n
Then, does section 4 have such an effect.  The only relevant
\npart of section 4 to which I need refer is clause (a)  which
\nis in the following terms :\n<\/p>\n
“Save as otherwise expressly provided in this Act,\n<\/p>\n
\t      (a)   any\t text,\trule  or  interpretation  of
\n\t      Hindu  law or any custom or usage as  part  of
\n\t      that  law\t in  force  immediately\t before\t the
\n\t      commencement  of this Act shall cease to\thave
\n\t      effect  with respect to any matter  for  Which
\n\t      provision is made in this Act.”\n<\/p>\n
The intendment and effect of section 4(a) is to abrogate the
\nexisting  law or custom in so far as it is replaced by\tthe
\nlaw enacted in the statute. if there is a provision made  in
\nthe statute which operates on the same area as the  existing
\nlaw or custom, the statutory provision must prevail and\t the
\nexisting  law or custom must give way : it must be taken  to
\nbe  superseded or, to use the language of section 4 (a),  it
\nwas  to cease to be in force, because then the matter  would
\nbe  governed  by  the statutory\t provision  and\t not-by\t the
\nexisting  law  or custom.  If, therefore,  section  15\twere
\napplicable  to an adoption made prior to the Act,  it  would
\ngovern the ‘matter’ of cancellation of such adoption and any
\nexisting law or custom providing to the contrary would cease
\nto be in force and no longer apply.  But as discussed above,
\nsection 15, on its proper interpretation, applies only to an
\nadoption  made\tafter  the commencement\t of  the  Act, and
\ntherefore, so far as the matter relating to cancellation  of
\nan  adoption made before the Act is concerned, any  existing
\nlaw or custom making provision in that behalf cannot be said
\nto  have  been abrogated by reason of  section\t4(a).\tSuch
\nexisting law or custom would continue in force and apply so
\nas  to govern the ‘matter’ of cancellation of adoption\tmade
\nbefore the commencement of the Act.\n<\/p>\n
(1)  (1911) 13 C.L.R. 324.\n<\/p>\n
40<\/span><\/p>\n
That  being  the  true legal position, let  us\tsee  how  it
\napplies\t in the present case.  Here there was, prior to\t the
\ncommencement  of the Act, the custom of Goda-datta  adoption
\nand  the Goda-datta adoption could, according to custom,  be
\ncancelled  by the adopter at any time he liked.\t The  custom
\nof  Goda-datta\tadoption  ceased  to  be  in  force  on\t the
\ncommencement  of  the Act by virtue of\tsection\t 4(a)  since
\nprovision was made in various section of the Act laying down
\nthe conditions and requirements for making an adoption.\t See
\nsection 5 to 1 1. No Goda-datta adoption could,\t therefore,
\nbe  made  after\t the commencement of the  Act  according  to
\ncustom\tand  consequently no question  of  its\tcancellation
\ncould  arise.\tBut  where a goda-datta\t adoption  was\tmade
\nbefore\tthe Act, the custom gave a right to the\t adopter  to
\ncancel\tthe adoption at his sweet will and this custom.\t in
\nso  far as it operated on Goda-datta adoption made prior  to
\nthe Act. did not cease to be in force under section 4(a)  as
\nsection\t 15 did not make provision in regard to ‘matter’  of
\ncancellation of such adoption.\tIt was, however,  contended
\non  behalf of the appellant that the custom  OIL  Goda-datta
\nadoption  had two limbs, one relating to the making  of\t the
\nadoption and  its effect and the other providing  for  its
\nrevocability at the option of the adopter or the adoptee and
\na  question was posed : if the first limb is destroyed,\t how
\ncan the second survive ? Both limbs of the custom, according
\nto the appellant, must perish as soon as the custom came  to
\nan  end\t on  the commencement of the  Act.   This  argument,
\nthough\tapparently attractive, is, in my opinion, not  sound
\nand suffers from the fault of over simplification.  It is of
\ncourse true that the custom of Goda datta adoption ceased to
\nbe  in force on the commencement of the Act and,  therefore,
\nin so far as it concerned adoption to be made subsequent  to
\nthe  Act, the second limb of the custom came to an end\twith
\nthe  first, because if no Goda-datta adoption could be\tmade
\nafter  the  commencement  of  the Act,\tthere  could  be  no
\nquestion  of  its cancellation.\t If the first  limb  of\t the
\ncustom\twas gone, there could be no Goda-datta\tadoption  on
\nwhich  the second limb could operate.  But where  under\t the
\nfirst  limb of the custom a Goda-datta adoption was  already
\nmade,  the  second  limb would not have to  depend  for\t its
\nsurvival  on the continuance of the first.  There  would  in
\nsuch  a\t case be a Goda-datta adoption on which\t the  second
\nlimb  of  the custom could operate and in relation  to\tsuch
\nGoda-datta adoption. the second limb of the custom would be
\nthe law in force.  That could not be said to be abrogated by
\nsection 4(a), since neither section 15 nor any other section
\nof  the Act made any provision in regard to the ‘matter’  of
\ncancellation  of  an adoption made prior to  the  Act.\t The
\nsecond limb of the custom relating to revocability of  Goda-
\ndatta  adoption,  therefore,  continued\t in  force  in\t its
\napplication- to Godadatta adoption made prior to the Act and
\nthe enactment of the Act did not have the effect of  putting
\nan  end to it.\tThe Goda-datta adoption made before the\t Act
\nwas,  therefore, revocable by the adopter at his sweet\twill
\neven after the commencement of the Act.\n<\/p>\n
I,  therefore, agree with my learned brother Untwalia,\tJ.,
\nthat  the  appeal should be dismissed with no  order  as  to
\ncosts.\n<\/p>\n
41<\/span><\/p>\n
UNTAWALIA,  J.\tIn  this  appeal  filed\t by  the   defendant
\nappellant  on grant of a certificate of fitness by the\tHigh
\nCourt\tof  Gujarat  under  Article  133  (1)  (c)  of\t the
\nConstitution  of India as it stood before the  Constitution
\n(Thirtieth  Amendment)\tAct,  1972  one\t of  the   important
\nquestions concerns the interpretation of Sections 4, 15\t and
\n30  of\tthe  Hindu  Adoptions  and  Maintenance\t Act,  1956-
\nhereinafter  called  the Act.  The two parties to  the\tsuit
\ngiving\trise  to  this appeal are the  descendants  of\tShri
\nVallabhacharya\tMaharaja,  the\toriginal  founder  of  Suddh
\nAdauit Pushti Marg.  He flourished about 500 years ago.\t The
\nfamily of the descendants aforesaid is known as\t Vallabhkul.
\nMany of such descendants are working as Acharyas of  various
\ntemples\t and shrines in Gujarat and other places.  They\t are
\ngenerally  known as Goswamis, Acharyas or Maharajas.   Their
\nOffices are known as “Gadis”.\n<\/p>\n
Maharaj\t Purshotamlalji\t Raghunathlalji was the\t Maharaj  of
\nJunagadh Haveli of Gujarat.  He died on 11th September, 1955
\nleaving\t behind a widow and four daughters.  He had no\tson.
\nThe plaintiff respondent was the widow and she was the\tonly
\nheir  of the deceased Maharaj and was called Vahuji  Maharaj
\nShri Chandraprabha.  According to the case of the respondent
\nshe  had engaged Daniraiji Urajlalji the appellant  in\tthis
\ncase  for doing the puja of the God which he was  performing
\nas  the representative of the respondent.  ‘Tilak’  ceremony
\nwas done in order to inform the Vaishnav devotees about\t the
\nappointment    of    the   appellant   for    doing    puja.
\nMurlidharlalji-the  older  brother of  the appellant,  was
\npressing the respondent to take him in adoption.  But  since
\nthe  appellant was an orphan-his parents being dead  earlier
\nhe  could not be adopted.  No ceremony of giving and  taking
\nhad  taken place.  No other ceremony as required  under\t the
\nHindu\tLaw  for  a  valid  adoption  was  performed.\t The
\nrespondent  filed  the\tsuit  on the  14th  of\tApril,\t1958
\nclaiming  relief of declaration that the appellant  was\t not
\nthe legally adopted son of deceased Purshotamlalji.  About 3
\nmonths after the institution of the suit the respondent made
\na written declaration on the 17th of July, 1958 stating that
\nthe adoption in question had never taken place and that even
\nif,  it\t was  believed\tthat it had  taken  place  it  stood
\nrevoked.   The declaration aforesaid, which  was  registered
\nalso  with  the Registrar of Documents, in Ext. 292  in\t the
\ncase.\tThe  appellant and his guardian were made  aware  of
\nthis declaration before their written statement was filed on
\nthe 15th August, 1958.\n<\/p>\n
The  appellant’s case has been that the\t respondent  adopted
\nhim  Is\t per their family custom on the\t 18th  March,  1956.
\nSuch ceremonies as were required to be performed as per\t the
\ncustom\tof  the\t family were gone  through.   The  customary
\nadoption  in the family is known either as “Goda  Datta”  or
\n“Goda”.\t  The appellant had also challenged in\this  written
\nstatement the respondent’s right to revoke the said adoption
\nbecause\t according  to the family custom, adoption  of\tGoda
\nDatta once made could not be revoked.\n<\/p>\n
Although  in their statement and in the particulars  of\t the
\ncustom\twhich  were supplied on behalf of the  appellant  on
\nbeing asked to do
\n42<\/span>
\nso,  only one type of customary adoption was  indicated)  in
\nevidence  attempt  was made on his behalf to show  that\t the
\ncustom recognized two types of adoptions-one known as  “Goda
\nDatta” and the other as “Samanya Goda”.\n<\/p>\n
Voluminous oral and documentary evidence was adduced by\t the
\nparties at the trial.  The Trial Judge decreed the suit\t and
\nheld as under
\n\t      (1)   That the appellant was adopted according
\n\t      to the custom of the family.\n<\/p>\n
\t      (2)   That   there  was  only  one   type\t  of
\n\t      customary\t adoption and the same was known  as
\n\t      “Goda Datta” or shortly as “Goda”.\n<\/p>\n
\t      (3)   That adoption of the type of Goda  Datta
\n\t      was  revocable unilaterally by either  of\t the
\n\t      parties and that such
\n revocation   was   in\tfact   made   by   the
\n\t      respondent.\n<\/p>\n
The  Trial  Judge negatived the contention  put\t forward  on
\nbehalf\tof the appellant that the alleged revocation  having
\nbeen  brought  about  during the pendency of  the  suit,  no
\nrelief could be given to the respondent on its basis.
\nThe  defendant\tfiled an appeal in the Gujarat\tHigh  Court.
\nThe  plaintiff filed a cross-objection to challenge  certain
\nfindings  of the Trial Judge recorded against her  specially
\nin  regard  to the factum of adoption.\tBut in view  of\t the
\nvoluminous  and\t unimpeachable\tevidence in  the  case,\t the
\nmatter\twas not pursued in the High Court on behalf  of\t the
\nrespondent.   Learned counsel for the appellant in the\tHigh
\nCourt  urged six points in support of the appeal  enumerated
\nin the judgment of the High Court as follows
\n\t      (1)   “That  the defendant has  satisfactorily
\n\t      proved\t      that  there are two  types  of
\n\t      customs  in the family, namely,  “Goda  Datta”
\n\t      and “Samanya Goda” and that the adoption which
\n\t      is  made in accordance with “Goda Datta”\ttype
\n\t\t\t    of customs is irrevocable.\n<\/p>\n
\t      (2)   That  assuming  that there is  only\t one
\n\t      type of custom as contended by the  plaintiff,
\n\t      the  plaintiff  has failed to prove  that\t the
\n\t      adoption\twhich  is  made by  that  custom  is
\n\t      revocable\t at  the instance of either  of\t the
\n\t      parties.\n<\/p>\n
\t      (3)   That   looking  to\tthe  deposition\t  of
\n\t      defandant’s  witness  Lalan  Krishna  Shastri,
\n\t      even  if\tit is believed\tthat  the  customary
\n\t      adoption\tin question is revocable, it may  be
\n\t      revoked  only on some reasonable\tgrounds\t and
\n\t      since  the  plaintiff  in this  case  has\t not
\n\t      revoked\tthis  adoption\ton  any\t  reasonable
\n\t      ground,  the  said revocation is\tnot  legally
\n\t      operative.’
\n\t      (4)   That at any rate, the declaration  found
\n\t      at Exhibit 292 by which the revocation is said
\n\t      to have been
\n\t       43<\/span>
\n\t      made, does not legally revoke the adoption  in
\n\t      as  much\tas  it does not admit  the  fact  of
\n\t      adoption of the defendant.\n<\/p>\n
\t      (5)   That on proper construction of  sections
\n\t      4 and 15 of the Hindu adoption and Maintenance
\n\t      Act  of  1956, the custom in question  was  no
\n\t      longer  in  force on the day  of\tthe  alleged
\n\t      revocation   and,\t therefore,  revocation\t  in
\n\t      accordance  with\tthat custom could  not\thave
\n\t      been legally made by the plaintiff.  According
\n\t      to  Mr.  Nanavati, the adoption  validly\tmade
\n\t      before the application of the said Act becomes
\n\t      absolute\tand  irrevocable  as  a\t result\t  of
\n\t      section 15 of the Act.\n<\/p>\n
\t      (6)That the prayer for declaration that the
\n\t      defendant is not adopted cannot be granted  in
\n\t      view  of the fact that the alleged  revocation
\n\t      has been made by the plaintiff only after\t the
\n\t      institution of the suit.”\n<\/p>\n
The  High  Court  has taken pains to discuss  and  scan\t the
\npoints\turged  on  behalf of the appellant  before  it,\t and
\nanswered all of them against him.\n<\/p>\n
Mr. V. S. Desai appearing on behalf of the appellant in this
\nCourt  finding\tit  difficult to press and  pursue  all\t the
\npoints\turged in the High Court gave up points 1 and  2\t and
\nfaintly pressed point no. 6 but ultimately gave up that too.
\nHe, however, urged point nos. 3, 4, and 5 for our acceptance
\nand  laid  great  stress on the 5th point which\t is  a\tpure
\nquestion  of  law and a ticklish one.  Mr. S. T.  D.  Desai,
\nlearned counsel for the respondent submitted that there\t was
\nno  substance  in any of the points urged on behalf  of\t the
\nappellant  and the judgment of the High Court was fit to  be
\nupheld in every respect.\n<\/p>\n
I, therefore, proceed to discuss the three questions falling
\nfor  determination in this appeal on the footing that  there
\nhas  been only one type of custom of adoption in  Vallabhkul
\nknown\tas  Goda  Datta\t and  the  custom   recognized\t the
\nrevocability of such adoption.\tAccording to the said custom
\nthe  adoption could be revoked and annulled at the  instance
\nof either party, namely, the adoptor or the adoptee.
\nThe  contention put forward on behalf of the appellant\tthat
\nrevocation could be made only on some reasonable grounds and
\nthe  custom required it to be so is not sound.\tThe  edifice
\nfor  such  an  argument was built on the  statement  in\t the
\nevidence  of the defendant’s witness Lalan  Krishna  Shastri
\nwho  stated  that adoption could be  revoked  on  “Sapeksha”
\nreasons.   The\twitness\t did not  explain  the\tmeaning\t of,
\n“Sapeksha”.   In  my opinion in the context  it\t meant\tthat
\nadoption Could be revoked unilaterally on the sweet will  or
\nvolition  of  either  party.   Such  an\t interpretation\t  is
\nconsistent  with the other pieces of, evidence in  the\tcase
\nreferred to in the judgment of the courts below.  No  reason
\nwas  necessary to be stated or proved to sustain  the  revo-
\ncation.\n<\/p>\n
44<\/span><\/p>\n
The  4th point for the appellant has also no substance.\t  In
\nthe  deed  of  cancellation Ext. 292  the  respondent  first
\nasserted that she had not taken the appellant in adoption on
\n15-3-1956 or at any time.  But if the statement that she had
\ntaken Shri Daniraiji-the appellant–in adoption was believed
\nto be true, she was cancelling and annulling that  adoption.
\nIn  my opinion the High Court has rightly rejected  the\t 4th
\ncontention  put forward on behalf of the appellant as  being
\nwithout force.\n<\/p>\n
Coming\tto the 5th and the only point of importance  in\t the
\ncase  I\t find  that  the  High\tCourt  has  over-ruled\tthis
\ncontention on two grounds-(1) “neither section 4 nor section
\n15  of\tthe Act is retrospective in its\t operation  and,  if
\nthese sections are construed in their proper perspective, it
\nwould  appear that they refer to these adoptions which\thave
\ncome  into existence after the application of the Act.”\t and
\n(2) that the right of revocation of a Goda Datta adoption is
\none  of its effects and is saved by section 30 of  the\tAct.
\nIn  my opinion the High Court is not right in deciding\tthis
\npoint  against the appellant on the second ground nor is  it
\nquite  accurate\t in the statement of law with  reference  to
\nsection 4 and 15 of the Act. 1, however, uphold the decision
\nof  the\t High  Court in this regard too\t but  for  different
\nreasons.\n<\/p>\n
Section\t 30 is a saving clause in the Act and says  “Nothing
\ncontained in this Act shall affect any adoption made  before
\nthe commencement of this Act, and the validity and effect of
\nany such adoption shall be determined as if this Act had not
\nbeen  passed.”\tThe  second  part  of  the  section  merely.
\nclarifies  what\t is  embodied  in  the\tfirst  ‘Part.\t The
\nprovisions  of the Act are not to affect any  adoption\tmade
\nbefore its commencement.  That is to say the validity of the
\nadoption made before the commencement of the Act as also its
\neffect\twill  have  to\tbe  examined  and  determined\twith
\nreference to the law or the custom as it stood prior to\t the
\ncoming into force of the Act and not in accordance with\t it.
\nThe  expression\t “affect  any  adoption”  necessarily  means
\naffect an adoption as to its “validity and effect.”  Neither
\nof  the expressions takes within its sweep any of the  other
\nincidents  or  characteristics of the law or the  custom  of
\nadoption under which it was made.  It is to be noticed\tthat
\nalmost\tthe  entire field in relation to  any  adoption\t was
\ncovered in its validity and effect.  Yet something  remained
\noutside\t it.  The custom of revocability of adoption at\t the
\ninstance of either party in the Goda Datta form was one such
\nmatter.\t Under the Hindu Law even as it stood before  coming
\ninto force of the Act “A valid adoption once made cannot  be
\ncancelled  by  the  adoptive father  or\t the  other  parties
\nthereto, nor can the adopted son renounce his status as such
\nand return to his family of birth” vide section 493 at\tpage
\n556  of Mulla’s Hindu Law (Fourteenth  Edition).   Departure
\nfrom  this general law was permissible in very rare type  of
\ncustoms–Goda  Datta  being  one  such.\t  The  incident\t  or
\ncharacteristic of this custom which entitled either party to
\nrevoke the adoption was not a matter concerning the validity
\nand the effect of adoption.\n<\/p>\n
Several\t judgments  of courts were produced as\tevidence  to
\nprove  the custom of Goda Datta, its effect  and  incidents.
\nOne such judgment
\n45<\/span>
\nwas Ext. 277 dt., 16th October, 1930 of Kania, J as he\tthen
\nwas  in\t suit no. 2019 of 1923.\t Dealing with  one  of\tthe
\npoints\twhich  arose in the suit, the  learned\tJudge  said.
\n“The   evidence\t of  the  plaintiff  and  Laxmishankar,\t  an
\nUpadhyaya  (a  priest  Who directs the\tperformance  of\t all
\nreligious ceremonies), proves the following principal points
\nof difference between the two adoptions :-In a Godh adoption
\nthere  was  no physical giving or taking of the boy  and  no
\nreligious  ceremonies  were necessary.\tAn orphan  could  be
\ntaken\tin   adoption  and  similarly  if  the\t last\tmale
\nrepresentative\tof  a  Gadi and his  widow  were  dead,\t the
\ntrustees managing the Gadi could take a person in  adoption.
\nAgain  this  adoption could be cancelled at  the  option  of
\neither the adopted son or the adoptive parents, and that  so
\nlong   as  the\tGodh-adoption  continued  the  adopted\t boy
\nperformed  the\tfuneral\t and  obsequial\t ceremonies  of\t the
\nadoptive  parents only.\t The person taken  in  Godh-adoption
\ndid  not  lose\this rights in the family of  his  birth\t and
\ncontinued to perform the funeral And obsequial ceremonies of
\nhis  natural  parents and relations.   Moreover\t the  person
\ntaken in Godh-adoption in one family could be further  taken
\nin  a  Godh-adoption  by  an  altogether  different   family
\nunconnected  with the first and instances of this kind\twere
\nmentioned  by Laxmishankar in his evidence (See ex.  3).   I
\naccept\tthe evidence of the plaintiff and  Laxmishankar\t on
\nthese points.  Bearing these fundamental differences in mind
\nit  is clear that such a Godhadoption is a pure creature  of
\ncustom and not of law.\tAs a Godhadoption could be cancelled
\nat  the option of either party the position of\tthe  adopted
\nperson was nothing higher than that of a dignified  employee
\nor licensee engaged to perform the rites and enjoy the\tpri-
\nvillages for the time he continued to be such a son.   Such
\nan  adoption  had absolutely no\t religious  significance  or
\nmerit  and  fell  far short of\teven  an  ordinary  contract
\nbetween\t the  parties.\tBy reason of such  an  adoption\t the
\nadopted\t person did not lose any right and the fact that  be
\ncould  be adopted in two or three families unconnected\twith
\neach  other  showed that it was only a\tsecular\t arrangement
\nwithout any religious efficacy attached thereto.”
\nEven  if Section 15 of the Act which prohibits\tcancellation
\nof  adoption once validly made were to apply to an  adoption
\nmade  prior  to coming into force of the Act, it  would\t not
\naffect\tthat adoption, its validity or effect.\t Instead  of
\naffecting  the\tadoption  it  would  not  permit  it  to  be
\naffected.  In my judgment, therefore, the main ratio of\t the
\ndecision of the High Court in this regard based upon section
\n30 of the Act is not correct.\n<\/p>\n
Section 4 of the Act reads as follows
\n     Save as otherwise expressly provided in this Act,\n<\/p>\n
\t      (a)   any\t text,\trule  or  interpretation  of
\n\t      Hindu  law or any custom or usage as  part  of
\n\t      that  law\t in  force  immediately\t before\t the
\n\t      commencement  of this Act shall cease to\thave
\n\t      effect  with respect to any matter  for  which
\n\t      provision is made in this Act;\n<\/p>\n
\t      46<\/span><\/p>\n
\t      (b)   any\t other\tlaw  in\t force\t immediately
\n\t      before  the  commencement of  this  Act  shall
\n\t      cease  to apply to Hindus in so far as  it  is
\n\t      inconsistent   with  any\tof  the\t  provisions
\n\t      contained in this Act.”\n<\/p>\n
We are concerned with clause (a).  In the Act, provision has
\nbeen  made  in\tChapter II, sections 5 to 17  in  regard  to
\nvarious matters in relation to adoption.  Section 5(1)\tsays
\n“No  adoption shall be made after the commencement  of\tthis
\nAct  by\t or  to\t a  Hindu  except  in  accordance  with\t the
\nprovisions contained in this Chapter, and any adoption\tmade
\nin  contravention  of the said provisions shall.  be  void.”
\nSection\t 6  prescribes\trequisites  of\ta  valid   adoption.
\nSection\t 7  and 8 provide for capacity of a male  or  female
\nHindu  to  take in adoption.  Sections 9 and  10  deal\twith
\npersons\t capable of giving in adoption and persons who\tmay
\nbe adopted.  The other conditions for a valid ,adoption\t are
\nenumerated  in\tsection\t 11.  Section 12  provides  for\t the
\neffects\t of  adoption.\tSection 15 reads as  follows  :\t “No
\nadoption which has been validly made can be cancelled by the
\nadoptive  father or mother or any other person, nor can\t the
\nadopted child renounce his ,or her status as such and return
\nto the family of his or her birth.”\n<\/p>\n
Any custom or usage as part of the Hindu Law in force  prior
\nto the commencement of the Act has ceased to have effect in
\nregard\tto any matter for which ‘provision has been made  in
\nChapter 1 1, except what has been expressly provided in\t the
\nAct,  such as, clauses (iii) and (iv) of section  10.\tThe
\ncustom of Goda Datta no longer exists.\tNo adoption could be
\nmade in the, Goda Datta form after coming into force of\t the
\nAct and hence there would be no question of its\t revocation.
\nSection 4 is clearly prospective and not retrospective.\t  If
\nsection\t 15 prohibits cancellation of adoption validly\tmade
\neven  prior  to\t the ,commencement of the Act,\tthen  it  is
\nmanifest that section 4 finishes the custom of\tcancellation
\nafter  the  commencement  of  the  Act,\t by  a\t prospective
\noperation and not by any retroactive action.  If the cancel-
\nlation would have been made before coming into force of\t the
\nAct, neither section 4 nor section 15 had any  retrospective
\noperation   to\t annul\tsuch  cancellation.   The   act\t  of
\ncancellation  in this case coming into existence  after\t the
\ncommencement  of the Act, the whole and sole question  which
\nfalls  for determination is whether the cancellation of\t the
\nadoption of the appellant by the respondent by Ext. 292\t was
\nin  contravention of section 15 of the Act.  I fit  was\t so,
\nthe  cancellation  was\tinvalid and could not  be  saved  by
\nsection 30.  If not, the cancellation was good and operative
\non its own force and not as being saved by section 30.
\nThe  difficulty in interpreting the language of\t section  15
\narises be-cause of the fact that it merely says “No adoption
\nwhich has been validly made can be cancelled……….. The
\nLegislature,  if I may say so, has omitted to use some\tmore
\nwords  in the section to express its intention clearly.\t  It
\nsays neither “adoption which has been validly made after the
\ncommencement  of  the  Act” nor\t “adoption  which  has\tbeen
\nvalidly made either before or after the commencement of\t the
\nAct.”  In such a situation it becomes the duty of the  court
\nto supply the gap and read the intention of the\t Legislature
\nin the context of the
\n47<\/span>
\nother  provisions  contained  in the  Act.   It\t would\tbear
\nrepetition to say that the law contained in the 15th section
\nof  the Act was by and large the- law prevalent\t before\t its
\ncommencement.\tExceptions were very rare as in the case  of
\nGoda Datta.  Did the Legislature intend to finish a part  of
\nthat custom by providing in the 15th section against cancel-
\nlation of the adoption ? Or, did it intend to say that\tonly
\nthe adoption which has been validly made in accordance\twith
\nthe provisions of the Act could not be cancelled ?
\nIn my considered judgment section 15 applies to an  adoption
\nwhich  hays  been  validly  made-  in  accordance  with\t the
\nprovisions contained in Chapter 11 of the Act and after\t its
\ncommencement.\tIt  does not do away with the  incident\t and
\ncharacteristic of revocability of the custom of Goda  Datta.
\nWhole  of Chapter 11 deals with the regulation\tof  adoption
\nmade  after  the commencement of the Act.   The\t effects  of
\nadoption  provided in the 12th section are  undoubtedly\t the
\neffects\t of  adoption  made  in\t accordance  with  the\tAct.
\nSection\t 13  says that ” an adoption does  not\tdeprive\t the
\nadoptive father or mother of the power to dispose of his  or
\nher  property by transfer inter vivos or by will.”  It\tdoes
\ninduce some change in the Hindu Law as it existed before the
\ncommencement,of\t the  Act, but obviously in  respect  of  an
\nadoption made thereafter.  The presumption as to  registered
\ndocuments  relating to adoption provided for in\t section  16
\ndoes  relate to a registered document recording an  adoption
\nmade after the commencement of the Act.\t In the context\t and
\nthe set up of the 15th section of the Act it is difficult to
\nenlarge\t its  scope and permit it to  embrace  any  adoption
\nwhich  has been validly made before the commencement of\t the
\nAct.   In my view the Legislature did not intend  to  change
\nthe  incident  or characteristic of a Goda  Datta  adoption,
\nwhich  made the position of the adopted person in the  words
\nof  Kania,  J  “nothing\t higher than  that  of\ta  dignified
\nemployee, or licensee engaged to perform the rites and enjoy
\nthe privileges for the time he continued to be such a  son.”
\nIt may be that the Legislature inadvertently left the custom
\nof revocability of Goda Datta adoption untouched by the 15th
\nsection\t of  the  Act.\tIn either view of the  matter  I  am
\nconstrained to hold that the cancellation of adoption of the
\nappellant made by the respondent by the registered  document
\ndated  17th July, 58 Ext. 292 in accordance with the  custom
\nof Goda Datta under which the adoption had been made was not
\nrendered  illegal or invalid for the alleged  infraction  of
\nsection\t 15 of the Act.\t There was no violation of  the\t law
\ncontained in that section.\n<\/p>\n
For the reasons stated above I would dismiss the appeal\t and
\nconfirm the decree of the High Court.  No order as to costs.\n<\/p>\n
\t\t\t   ORDER
\nIn accordance with the Judgments of the majority, the appeal
\nis dismissed with no order as to costs.\n<\/p>\n
The order appointing Receiver is discharged.
\nV.P.S.\n<\/p>\n
48<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Daniraiji Vrajlalji, Junagadh vs Vahuji Maharaj Shri … on 13 December, 1974 Equivalent citations: 1975 AIR 784, 1975 SCR (3) 32 Author: K K Mathew Bench: Mathew, Kuttyil Kurien PETITIONER: DANIRAIJI VRAJLALJI, JUNAGADH Vs. RESPONDENT: VAHUJI MAHARAJ SHRI CHANDRAPRABHA WIDOW OFDECEASED MAHARAJ S DATE OF JUDGMENT13\/12\/1974 BENCH: MATHEW, KUTTYIL KURIEN BENCH: […]<\/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-54202","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nDaniraiji Vrajlalji, Junagadh vs Vahuji Maharaj Shri ... on 13 December, 1974 - 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\/daniraiji-vrajlalji-junagadh-vs-vahuji-maharaj-shri-on-13-december-1974\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Daniraiji Vrajlalji, Junagadh vs Vahuji Maharaj Shri ... on 13 December, 1974 - 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