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Smt. Lilabai Wd/O. Ambadas Mirge vs Purshottam Ambadas Mirge on 9 March, 2018

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.

SECOND APPEAL NO.291 OF 2016

APPELLANT: Smt. Lilabai Wd/o Ambadas Mirge, aged
about 74 years, Occ: Nil, R/o Bhastan,
presently R/o Shetkhed (Shegaon),
Tahsil Sangrampur, District Buldhana
(Original Plaintiff)

-VERSUS-

RESPONDENT: Purshottam Ambadas Mirge, aged about
41 years, Occ: Agriculturist, R/o
Bhastan, Tq. Shegaon, District Buldhana
(Original Defendant No.1)

Shri H. R. Gadhia, Advocate for the appellant.
Shri R. L. Khapre, Advocate for the respondent.

CORAM: A.S. CHANDURKAR, J.

DATE ON WHICH SUBMISSIONS WERE HEARD: 24-02-2018
DATE ON WHICH JUDGMENT IS PRONOUNCED: 09-03-2018

ORAL JUDGMENT :

1. Admit.

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2. Heard finally on the following substantial question of

law:

Whether the adoption of the defendant No.1 on
10-4-1989 was legal and valid in accordance with the provisions of
Sections 10 and 16 of the Hindu Adoptions and Maintenance Act,
1956?

3. The facts giving rise to this second appeal are that the

appellant is the original plaintiff. It is her case that her husband

Ambadas expired on 31-8-2007. The couple did not have any

issue. The respondent No.1 – defendant no.1 through fraud and

misrepresentation got a bogus adoption deed executed and on that

basis he had sought to grab her land in collusion with defendant

No.2. When the appellant obtained 7/12 extracts of the suit field

in the year 2008-09, she found that the name of the respondent

No.1 was entered in the suit field. She therefore, filed suit for

declaration that the respondent no.1 had no concern with the suit

land and that it be declared that she was issueless.

4. The respondent No.1 filed his written statement.

According to him, on 10-4-1989 he was legally adopted by

Ambadas and the plaintiff. A deed of adoption was duly prepared

and got registered. On this basis, it was claimed that the

respondent No.1 had a legal right to enjoy the suit property and

the suit was liable to be dismissed.

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5. While the plaintiff examined herself, the defendant

No.1 examined about thirteen witnesses. The trial Court held that

the defendant no.1 had got the adoption deed executed by

misguiding the plaintiff and her husband. It was held that the

plaintiff was entitled for the declaration as prayed for and

accordingly granted that declaration. The defendant No.1 being

aggrieved filed an appeal. The appellate Court reversed the

judgment of the trial Court and held that the defendant No.1 had

been validly adopted on 4-10-1989 and therefore the plaintiff was

not entitled to the declaration as sought. The plaintiff being

aggrieved has filed the instant second appeal.

6. Shri H. R. Gadhia, learned Counsel for the original

plaintiff submitted that the requirements of a valid adoption as per

the provisions of Sections 10 to 16 of the Hindu Adoption and

Maintenance Act, 1956 (for short, the said Act) had not been duly

proved. The defendant No.1 was more than fifteen years of age

when he claimed to have been adopted. It was therefore,

necessary for the defendant no.1 to have proved the custom or

usage applicable to the parties which permitted adoption of a

person who had completed age of fifteen years. There were no

pleadings whatsoever with regard to such custom and therefore it

could not be held that the defendant no.1 had been validly

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adopted. In that regard he placed reliance on the decisions in

Nemichand Shantilal Patni Vs Basantibhai w/o Nemichand Pahade

1994(2) Mh.L.J. 1078, Anirudh Jageorao vs Babarao Irbaji and

others 1983 Mh.L.J. 379 and Bhimashya and ors. vs. Janabi @

Janawwa (2006) 13 SCC 627. It was then submitted that there

was no evidence with regard to the giving and taking into

adoption of the defendant no.1. The necessary ceremony had not

been duly proved. The evidence of DW-1 did not warrant

acceptance in view of various admissions in his cross-examination.

The other witnesses examined were closely related with the

defendant No.1 and hence being interested witnesses, their

deposition did not deserve to be accepted. In that regard he

referred to the decision in Saraswati S/o Keshav Mandve and others

vs. Chandrabhan S/o Baliram Kale and another 2016(6) Mh.L.J.

668. It was therefore, urged that the decree passed by the trial

Court deserves to be restored and the judgment of the appellate

Court deserves to be set aside.

7. Per contra, Shri R. L. Khapre, learned Counsel for the

defendant No.1 opposed aforesaid submissions. According to him,

the custom with regard to adoption of a boy above the age of

fifteen years was judicially recognized in the Berar region. As such

custom was judicially recognized it was not necessary to again

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independently prove the existence of such custom. The detailed

pleadings in that regard were not necessary. He submitted that

the natural father of the defendant No.1 and the adoptive father

were brothers and therefore it was but natural that the witnesses

would be related to each other. As the parties were closely related,

it was not necessary to have the ceremony of ‘Datta Homa’. It was

then submitted that though it was the case of the plaintiff that the

deed of adoption was vitiated by fraud and misrepresentation,

there was no pleadings in that regard. He referred to the evidence

brought on record as well as the document at Exhibit-139 which

was an oral report lodged by the plaintiff on 12-8-2009 admitting

the status of the defendant no.1. He therefore, submitted that the

appellate Court rightly dismissed the suit and that adjudication did

not call for any interference. The learned Counsel placed reliance

on the decisions in Vishwasrao Vithoba v. Sahebrao Yeshwantrao

and others AIR 1958 Bom 375, Anirudh Jagdeorao v. Babarao Irbaji

and others 1983 Mh.L.J. 379, Madhusudan Das v. Smt. Narayani

Bai and others AIR 1983 SC 114, Kondiba Rama Papal alias Shirke

vs. Narayan Kondiba Papal AIR 1991 SC 1180, Biswanath Prasad

and others v. Dwarka Prasad and others AIR 1974 SC 117 and L.

Debi Prasad V. Smt. Tribeni Devi and others AIR 1970 SC 1286.

8. I have heard the learned Counsel for the parties at

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length and with their assistance I have also perused the documents

filed on record. The parties to the proceedings are from Khamgaon

Taluka which is part of the Berar region. As held in Vishwasrao

Vithoba (supra), the lex loci in Berar region is the Mitakshara as

interpreted in the Bombay Presidency. The Full Bench of this Court

in Anirudha Jagdeorao (supra) has recognized the custom

prevalent in the Bombay School of adoption of a boy over the age

of fifteen years. It was held by the Full Bench that where a custom

is repeatedly brought to the notice of the Courts, the Courts may

hold that custom introduced into the law without the necessity of

law or proof in each individual case. This view of the Full Bench

has been approved by the Hon’ble Supreme Court in Kondiba

Rama Papal (supra). In that view of the matter, the custom with

regard to adoption of a child of any age has been judicially

recognized in the Bombay State. Proof of such custom is therefore,

not necessary in subsequent cases. If proof of such custom is not

required in view of aforesaid legal position, specific pleadings in

that regard are also not necessary. The decision in Bhimashya and

others (supra) is therefore distinguishable in these facts. The

compliance with the provisions of Sections 10 and 11 of the said

Act would have to be considered in aforesaid legal backdrop.

9. The adoption deed dated 4-10-1989 at Exhibit-61

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has been signed by the adoptive father, Ambadas as well as

his wife, the plaintiff. The defendant no.1 sought permission

as per Exhibit 47 to lead secondary evidence for proving the

adoption deed. In view of the no objection given by the

plaintiff, the defendant no.1 was granted such permission.

The adoption deed is duly registered and therefore a mere

denial of the plaintiff in that regard would not be sufficient to

disprove or dislodge the presumption that arises in view of

Section 16 of the said Act. The appellate Court has rightly

considered this aspect of the matter.

10. According to the defendant No.1, his natural father is

the brother of his adoptive father. As the plaintiff was issueless the

defendant No.1 was taken into adoption on 10-4-1989. The

registered deed of adoption is at Exhibit-61. In support of the

aspect of adoption the defendant No.1 examined various

witnesses. The Priest who conducted the ceremony of adoption

was examined at Exhibit-130. This witness has deposed about the

manner in which the adoption ceremony took place. The

Photographer who was present on the occasion and who had taken

various photographs of the ceremony was examined below Exhibit-

118. Various other relatives and members of the family were also

examined. When the entire evidence led by the defendant No.1 is

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examined, it is clear that this evidence has been rightly found

sufficient by the appellate Court for coming to the conclusion that

the defendant no.1 was validly adopted by the plaintiff and her

husband. As held in Madhusudan Das (supra), mere relationship of

witnesses with the parties to the proceedings would not be a

reason to discard their evidence. Moreover, as per the various 7/12

extracts placed on record by the defendant No.1, his name has

been shown as the legal heir of Ambadas. His other documents of

identification also indicate that he was shown as son of Ambadas.

The oral report at Exhibit-139 lodged by the plaintiff on 12-8-2009

also indicates that the plaintiff was treating the defendant No.1 as

her adopted son. The decision in L. Debi Prasad (supra) supports

the case of defendant no.1 in that regard.

11. Thus, from the aforesaid evidence on record, I find

that the appellate Court has rightly come to the conclusion that the

plaintiff had failed to prove that the adoption of the defendant

No.1 was as a result of exercise of fraud and misrepresentation.

There is no evidence whatsoever in that regard. On the contrary,

the defendant No.1 has successfully proved the existence of the

custom with regard to his adoption and the adoption was in

accordance with the provisions of Sections 10 and 16 of the said

Act. The substantial question of law is answered in the affirmative

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and in favour of the defendant No.1. The second appeal, therefore,

stands dismissed with no order as to costs.

JUDGE

/MULEY/

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