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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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