Ratanlal @ Babulal Chunilal … vs S.G. Samsuka (D) Th.Lrs . on 22 November, 2017

REPORTABLE

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO (S). 6378 OF 2013

RATANLAL @ BABULAL CHUNILAL SAMSUKA …APPELLANT

VERSUS

SUNDARABAI GOVARDHANDAS …RESPONDENT(S)
SAMSUKA (D.) TH. LRS.
ORS.

JUDGMENT

N. V. RAMANA, J.

1. The appellant is before us aggrieved by the judgment and

decree passed by the High Court of Judicature at Bombay,

in First Appeal No. 1662 of 1996, dated 22.12.2006. The

High Court has partly allowed the appeal by setting aside

the judgment of trial court and declared that the 1 st

defendant, who is the appellant herein, was not the

adopted son of late Govardhandas Laxmichand Samsuka
Signature Not Verified

Digitally signed by

and consequently the appellant herein was permanently
VISHAL ANAND
Date: 2017.11.22
16:29:57 IST
Reason:

restrained from representing himself as son of

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Govardhandas and further restrained him from naming

himself as Ratanlal Govardhandas Samsuka.

2. A brief reference to the factual matrix necessary for

disposal of the case on hand are, late Govardhandas has a

brother by name Chunilal Laxmichand who is none other

than the father of the 1st defendant/appellant herein.

Right from his childhood, appellant used to reside with

his paternal uncle Govardhandas. During his life

Govardhandas used to carry on business of timber in the

name of defendant No. 5 initially and later he inducted

into business the appellant and defendant Nos. 2 to 4 as

partners. After the death of Govardhandas his wife

Sundarabai who is the original plaintiff in the suit was

also taken as a partner. When the other partners failed to

give her share in the business, she issued notice to all the

partners to give accounts of 5 th defendant partnership firm

and also to pay the amount of her share.

3. In the year 1984, wife and children of Chunilal i.e. brother

of Govardhandas issued notice, to Sundarabai and the

appellant, stating that appellant is the adopted son of late

Govardhandas as such he cannot claim any share in his

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natural family and further sought for partition of the joint

family properties, for that Sundarabai issued a reply

notice denying the factum of adoption and thereafter filed

the present suit i.e. Special Civil Suit No. 395/1987 for

dissolution and accounts of defendant No. 5 partnership

firm and also sought for a declaration that the appellant is

not the adopted son of late Govardhandas. During the

pendency of the suit, Sundarabai died and her daughters

were brought on record.

4. The trial court, after a full-fledged trial, has partly decreed

the suit declaring that the deceased Sundarabai, original

plaintiff had 1/5th share in the assets and liabilities of the

partnership firm and passed preliminary decree for taking

accounts. But the declaration claimed by the plaintiff that

appellant is not the adopted son of late Govardhandas

was rejected and the trial court came to the conclusion

that plaintiff failed to prove that defendant is not the

adopted son of late Govardhandas. The reasoning of the

trial court can be summed up as under:

a. Plaintiff failed to prove that appellant herein is not
the adopted son of late Govardhandas.

b. Continuation of biological father’s name over
adopted father’s name even after the 1973 is

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inconsequential in view of other evidences on
record.

c. That some letters and invitations were addressed to
appellant with his adoptive father’s name.

d. That the priest [Chaturbuj Sharma] who is alleged
to have performed the adoption ceremony has
deposed in favor of the appellant.

e. Photographs taken at the time of the adoption
ceremony are self-explanatory. It is to be noted
that in one particular photograph appellant is seen
with a garland and absence of Asha or her
husband in the photographs clearly proves that
adoption had taken place one day prior to the
marriage of Asha [daughter of Govardhandas and
Respondent].

5. Aggrieved by the judgment and decree passed by the trial

court, the plaintiffs carried the matter to the High Court

in First Appeal No. 1662/96. The appellant herein has not

questioned the preliminary decree passed for accounts

and declaration that late Sundarabai is entitled to 1/5 th

share in 5th defendant company as such those findings

have become final. The High Court, while partly allowing

the appeal, concluded that the appellant herein is not the

adopted son as the conduct and circumstances

surrounding the adoption are suspicious. The following

circumstances have weighed with by the High Court in

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coming to the conclusion that the factum of adoption was

not proved with cogent evidence-

a. Non-production of negatives of alleged photographs
taken during the adoption ceremony.

b. That the photographs do not portray any ceremony
being performed by the priest involving the
appellant and his adoptive parents.

c. The alleged adoption took place one day before the
marriage of Asha (daughter of respondent), which
casts shadow on the photographs taken during the
ceremony.

d. That there was no evidence on record other than the
oral testimony of one Chaturbuj Sharma that he
performed the adoption ceremony as a priest.

e. That appellant himself has contradicted the oral
testimony of the alleged priest Chaturbuj Sharma
concerning the ceremony of taking the appellant
into the lap of Govardhandas.

f. That the letters exhibited to show the change of
name does not cogently establish the adoption.

g. From the date of adoption up to filing the suit, the
appellant continued to use his earlier name without
adopting the name of the adopted father.

h. The Income tax returns of the appellant after 1973
indicates that he continued to use his earlier name.

i. No explanation forthcoming from the appellant
concerning the above suspicious circumstances.

j. Moreover, the adopted mother herself is contesting
the factum of adoption.

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6. Learned counsel appearing on behalf of the appellant has

argued that-

a. The custom of married men getting adopted is prevalent in

Jain community, which has been proved by the priest who

performed the adoption ceremony.

b. The custom of adoption of married men was judicially

recognized in catena of cases.

c. The appellant has been validly adopted in consonance

with the accepted customs.

7. On the other hand, learned counsel appearing on behalf of

the respondents has contended that-

a. The appellant has not pleaded any custom in Jain

community which allows adoption of married men.
b. That the adoption should be accepted only when it is

established with cogent and consistent proof, as it has the

potential to alter the succession.

c. The appellant retained his earlier name and acquired

properties subsequently in his earlier name itself.

8. In the light of the submissions advanced before us, we are

called upon to answer two short questions concerning the

alleged adoption of the appellant herein by late

Govardhandas in the year 1973. Hence the following

issues arise for consideration before this Court-

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1. Whether the person who alleges the existence

of a custom need not prove the same because

it is judicially accepted?

2. Whether the appellant could plead and prove

the factum of adoption?

9. In response to the issue number one, first and foremost,

we would like to deal with the submission of the learned

counsel for the appellant that the custom of giving

married man in adoption in Jain community is judicially

accepted and hence the adoption need not be proved. It is

an admitted fact that the parties concerned in this case

are Jains. There is no dispute that Jains are governed by

the Hindu Adoptions and Maintenance Act, 1956

[hereinafter ‘the Act’ for brevity] and therefore certain

provisions which may throw some light on the question,

have to be looked into. Section 3 of the Act deals with

definitions. The term ‘custom’ is defined as under-

3. DEFINITIONS- In this Act unless the context
otherwise requires- (a) the expressions “custom”

and “usage” signify any rule which, having been
continuously and uniformly observed for a long
time, has obtained the force of law among Hindus
in any local area, tribe, community, group or
family; Provided that the rule is certain and not
unreasonable or opposed to public policy; and
Provided further that, in the case of a rule

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applicable only to a family, it has not been
discontinued by the family;

10. Section 10 of the Act provides thus-

10. PERSONS WHO MAY BE ADOPTED- No person
shall be capable of being taken in adoption
unless the following conditions are fulfilled,
namely-

(iii) he or she has not been married, unless
there is a custom or usage applicable to the
parties which permits persons who are
married being taken in adoption;

(iv) he or she has not completed the age of
fifteen years, unless there is a custom or
usage applicable to the parties which
permits persons who have completed the age
of fifteen years being taken in adoption.

11. From the aforesaid provisions, it is clear that a

person cannot be adopted if he or she is a married person,

unless there is a custom or usage, as defined under

Section 3(a), applicable to the parties which permits

persons who are married being taken in adoption.

12. India has a strong tradition of respect for difference

and diversity which is reflected under the Hindu family

laws as it is applicable to diverse communities living from

the southern tip to northern mountains, from western

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plains to eastern hills. Diversity in our country brings

along various customs which defines what India is. Law is

not oblivious of this fact and sometimes allows society to

be governed by customs within the foundation of law. It is

well known that a custom commands legitimacy not by an

authority of law formed by the State rather from the

public acceptance and acknowledgment. This Court in

Thakur Gokal Chand v. Pravin Kumari, AIR 1952 SC

231, has explained the ingredients of a valid custom in

the following manner-

“A custom, in order to be binding, must derive its
force from the fact that by long usage it has
obtained the force of law, but the English rule
that “a custom, in order that it may be legal and
binding, must have been used so long that the
memory of man runneth not to the contrary”
should not be strictly applied to Indian
condition. All that is necessary to prove is that
the usage has been acted upon in practice for
such a long period and with such invariability as
to show that it has, by common consent, been
submitted to as the established governing rule of
a particular locality”.

Black’s Law Dictionary defines customary law as “customs

that are accepted as legal requirements or obligatory rules

of conduct, practices and beliefs that are so vital and

intrinsic a part of a social and economic system that they

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are treated as if they are laws.”1 Privy Council in The

Collector of Madura v. Moottoo Ramalinga

Sathupathi, 12 MIA 397 (1868), has observed that

“under the Hindu System of law, clear proof of usage will

outweigh the written text of law”.

13. As per the settled law under Section 2(a) the Act, the

following ingredients are necessary for establishing a valid

custom-

a. Continuity.

b. Certainty.

c. Long usage.

d. And reasonability.

As customs, when pleaded are mostly at variance with the

general law, they should be strictly proved. Generally,

there is a presumption that law prevails and when the

claim of custom is against such general presumption,

then, whoever sets up the plea of existence of any custom

has to discharge the onus of proving it, with all its

requisites to the satisfaction of the Court in a most clear

and unambiguous manner. It should be noted that, there

are many types of customs to name a few-general

customs, local customs and tribal customs etc. and the

burden of proof for establishing a type of custom depend
1 Bryan A. Garner, Black’s Law Dictionary (10th Eds.), p. 468.

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on the type and the extent of usage. It must be shown

that the alleged custom has the characteristics of a

genuine custom viz., that it is accepted willfully as having

force of law, and is not a mere practice more or less

common. The acts required for the establishment of

customary law ought to be plural, uniform and constant.

14. Custom evolves by conduct, and it is therefore a

mistake to measure its validity solely by the element of

express sanction accorded by courts of law. The

characteristic of the great majority of customs is that they

are essentially non-litigious in origin. They arise not from

any conflict of rights adjusted, but from practices

prompted by the convenience of society. A judicial

decision recognizing a custom may be relevant, but these

are not indispensable for its establishment. When a

custom is to be proved by judicial notice, the relevant test

would be to see if the custom has been acted upon by a

court of superior or coordinate jurisdiction in the same

jurisdiction to the extent that justifies the court, which is

asked to apply it, in assuming that the persons or the

class of persons concerned in that area look upon the

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same as binding in relation to circumstances similar to

those under consideration. In this case at hand there was

no pleading or proof which could justify that the above

standards were met.

15. It would not be out of context to observe certain

judicial decisions which throw some light on the issue

raised in this case instant. In Rup Chand v. Jambu

Prasad, (1910) ILR 32 247, Privy Council held that-

“The custom alleged in the pleading was this: ”
Among the Jains Adoption is no religious
ceremony, and under the law or custom there is
no restriction of age or marriage among them.”
And that appears to be the custom found by the
High Court to exist. But upon the argument
before their Lordships it was strenuously
contended that the evidence in the present case,
limited as it is to a comparatively small number
of centers of Jain population, was insufficient to
establish a custom so wide as this, and that no
narrower custom was either alleged or proved.

In their Lordships’ opinion there is great weight
in these criticisms, enough to make the present
case an unsatisfactory precedent if in any future
instance fuller evidence regarding the alleged
custom should be forthcoming”.

16. In Sheokuarbai v. Jeoraj, AIR 1921 PC 77, Privy

Council observed that, among the Sitambari Jains the

widow of a sonless Jain can legally adopt to him a son

without any express or implied authority from her

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deceased husband to make an adoption, and the adopted

son may at the time of his adoption be a grown-up and

married man. The only ceremony to the validity of such an

adoption is the giving and taking of the adopted son.

17. It is very much evident that the appellant in this

case has failed to produce any evidence to prove that such

practice has attained the status of general custom

prevalent among the concerned community. Custom, on

which the appellant is relying, is a matter of proof and

cannot be based on a priori reasoning or logical and

analogical deductions, as sought to be canvassed by the

appellant herein. Hence the issue is answered against the

appellant.

18. In response to issue number two, we are concerned

here with the custom of adopting married sons in the

community of the appellant. The only evidence, the

appellant has adduced, is his own testimony and a word

of a priest who had performed the ceremony. A general

custom which the appellant intends to prove requires

greater proof than the one appellant adduced before the

court. Moreover, there is no dispute with regard to the fact

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that the appellant did not plead in his written statement

about existence of any custom as such. Parties to a suit

are always governed by their pleadings. Any amount of

evidence or proof adduced without there being proper

pleading is of no consequence and will not come to the

rescue of the parties.

19. At this juncture it would be necessary to observe the

law laid down by this Court in numerous cases that the

burden of proving adoption is a heavy one and if there is

no documentary evidence in support of adoption, the

Court should be very cautious in relying upon oral

evidence. This Court held so in Kishori Lal v. Mst.

Chaltibai, AIR 1959 SC 504, We can do no better than to

quote the relevant passage from the above judgment

which reads as under:-

“As an adoption results in changing the course of
succession, depriving wives and daughters of
their rights and transferring properties to
comparative strangers or more remote relations it
is necessary that the evidence to support it
should be such that it is free from all suspicion of
fraud and so consistent and probable as to leave
no occasion for doubting its truth. Failure to
produce accounts, in circumstances such as
have been proved in the present case, would
be a very suspicious circumstance.

(emphasis supplied)

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20. In Rahasa Pandiani (dead) by LRs. and Ors. v.

Gokulananda Panda and others, AIR 1987 SC 962,

aforesaid aspect was observed as under:

“When the Plaintiff relies on oral evidence in
support of the claim that he was adopted by the
adoptive father in accordance with the Hindu
rites, and it is not supported by any registered
document to establish that such an adoption
had really and as a matter of fact taken place,
the Court has to act with a great deal of caution
and circumspection. Be it realized that setting
up a spurious adoption is not less frequent than
concocting a spurious will, and equally, if not
more difficult to unmask. And the Court has to
be extremely alert and vigilant to guard against
being ensnared by schemers who indulge in
unscrupulous practices out of their lust for
property. If there are any suspicious
circumstances, just as the propounder of the
will is obliged to dispel the cloud of
suspicion, the burden is on one who claims
to have been adopted to dispel the same
beyond reasonable doubt. In the case of an
adoption which is not supported by a registered
document or any other evidence of a clinching
nature if there exist suspicious circumstances,
the same must be explained to the satisfaction
of the conscience of the Court by the party
contending that there was such an adoption.
Such is the position as an adoption would divert
the normal and natural course of succession.

Experience of life shows that just as there
have been spurious claims about execution of
a will, there have been spurious claims about
adoption having taken place. And the Court
has therefore to be aware of the risk involved
in upholding the claim of adoption if there
are circumstances which arouse the,
suspicion of the Court and the conscience of
the Court is not satisfied that the evidence

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preferred to support such an adoption is
beyond reproach”.

(emphasis supplied)

21. In the light of the above precedents, it would be

necessary to observe statements of certain witnesses.

Appellant, himself, got examined as a witness, which is

marked as Ex. 121. He stated that after death of his

biological father in 1972, he came to Nasik to continue his

education while living with Govardhandas at his

residence. As per his evidence, during the marriage of

Asha, Govardhandas decided to adopt the appellant and

the ceremony was held on 08.07.1973, one day before the

marriage. The adoption ceremony was held at the

residence of Govardhandas. As appellant and

Govardhandas were from the Jain community, there was

no bar in their community either for adoption of a married

son or concerning the age of the adopted son. It is stated

that there is no custom in their community to reduce the

adoption in writing. One Chaturbuj Maharaj was the

priest who performed the said ceremony in the presence of

his biological mother, sisters and other relatives. His

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biological mother gave appellant in adoption to

Govardhandas and Sundarabai i.e. the original plaintiff.

Govardhandas and Sundarabai performed the pooja of the

said ceremony. Said ceremony was held with the desire

and consent of Sundarabai and Govardhandas. After the

appellant was given in adoption to Govardhandas,

appellant was instructed by the priest to sit on the lap of

Govardhandas and Sundarabai. After the ceremony,

lunch was served to all persons, who had attended the

ceremony. It is to be noted that invitation cards were

printed but the same were sent separately and not with

the marriage invitation card. In the cross examination he

states that even though the marriage was held on

09.07.1973, certain marriage ceremonies were held as per

community traditions on 08.07.1973. That he was aged

thirty-two when he was allegedly adopted and he does not

know of any examples of adoption of a thirty-two-year-old

man. He admits that he did not submit any document to

show that he was using his adoptive father’s name after

1973. He further states that he had filed an application

before the municipal council for succession rights, but the

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same was not produced in the suit. Moreover, he states

that he was filing income tax returns in his earlier name

‘Ratanlal Chunilal’.

22. One Chaturbuj Laxminarayan Sharma was examined

as witness no. 2 on behalf of the appellant. His deposition

was marked as Ex. No. 152. He stated that he knew

Govardhandas for 30 years. He used to perform

ceremonies for his family including the adoption ceremony

of the appellant which had taken place at the residence of

Govardhandas. He deposed that the ceremony was

attended by a gathering of 100 to 200 people. According to

him he had performed Navgrah pooja, Kuldevi pooja,

Laxmi-narayan pooja, havan and sankalp as part of

adoption. Thereafter, name of the appellant was changed

from Ratanlal Chunilal to Ratanlal Govardhandas. At the

time of the ceremony, mother of the appellant gave hand

of the appellant in the hands of Govardhandas.

Photographs were taken at the time of the ceremony. In

the cross examination he stated that invitation card for

the ceremony was published and distributed. He was

unable to tell who decided to perform adoption ceremony

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by giving hand of the appellant. He admits that in Jain

community, person to be adopted has to be seated on the

lap of the adopting father. But he stated that Ratanlal was

not asked to take a seat on the lap of Govardhandas as he

was weak and defendant No. 1 (Ratanlal) was healthier;

this is a glaring contradiction between the evidence of

appellant and the priest. One Harakchand Bhansali of

Kapoorgaon was adopted after he was married. He was

not able to give particulars of such adoption. Further he

states that he does not know of any other example of

adoption of a married person.

23. Girjappa Gangaram Kothule, who was examined as

defense witness No. 3, stated that he knew Govardhandas

for many years. He recollected that many years ago

Govardhandas had discussed the matter of adopting the

appellant with him. He was present during the ceremony.

He could not recollect whether invitation cards were

printed for the adoption ceremony. According to his

statement, the adoption ceremony was performed at the

residence of the Govardhandas wherein 200 to 300

persons attended that function. He further stated that no

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religious ceremony relating to the marriage had taken

place prior to the day of marriage. It is to be noted that

Mohanlal and Ajith have deposed on the same lines in

favour of the appellant.

24. The evidence as discussed above makes it clear that

there are lot of contradictions in the evidence of witnesses

on all material aspects of adoption. A thorough glance at

the entire evidence makes it clear that the appellant who

asserts the fact that he is adopted by late Govardhandas

failed to plead and prove the factum of adoption. All the

circumstances pleaded by the appellant are not properly

explained by adducing cogent evidence to the satisfaction

of the Court. The trial court placed burden on the plaintiff

to prove the adoption which is contrary to law. The

appellant failed to satisfy the Court that any question of

law much less substantial questions of law arise in this

appeal which warrant interference of this Court.

25. Having regard to the evidence available on record

and the circumstances elucidated herein above, the view

taken by the High Court, being convincingly reasonable,

we see no reason to interfere with the judgment of the

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High Court. Accordingly, this appeal is dismissed. There

shall be no orders as to costs.

……………………..……J.

(N. V. RAMANA)

…………………………..J.

(AMITAVA ROY)
New Delhi,
November 22, 2017

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