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CASE NO.: Special Leave Petition (civil)  1380 of 2002

PETITIONER: Salekh Chand (Dead) by Lrs

RESPONDENT: Satya Gupta and Ors

DATE OF JUDGMENT: 04/03/2008

BENCH: Dr. ARIJIT PASAYAT & P. SATHASIVAM

JUDGMENT: J U D G M E N T  

CIVIL  APPEAL NO.               OF 2008 (Arising out of SLP (C.) No. 1380 of 2002)

Dr. ARIJIT PASAYAT, J

1.      Second appeal filed by the defendants having been allowed  by the learned Single Judge of the Allahabad High Court one of  the plaintiffs Salekh Chand has filed this appeal.  The legal  heirs of the another plaintiff Om Prakash who died on  28.2.1998 (proforma respondent No.4) have been impleaded in  this appeal. Om Prakash’s widow   Smt. Ram    Kumari   died  on 2.6.1999 and, therefore, their son Munna Lal is proforma  respondent no.4.

2.      Background facts in a nutshell are as follows:

 A suit filed by the plaintiffs Om Parkash and present  appellant Salakh Chand was dismissed by learned Additional  Civil Judge, Ghaziabad in Suit No.699/84.  Learned Additional  District Judge, Ghaziabad reversed the judgment and decree  dated 5.3.1990 by judgment and decree dated 22.2.1998.  The  plaint averments refer to the following facts:        

       Om Prakash and Salekh Chand filed Suit No.699 of 1984  against Smt. Satya Gupta and one Brijesh Kumar.  Shiv Om  Banshal and Mahendra Kumar Banshal (Respondent Nos. 2  and 3 in this appeal) were impleaded as defendant nos.3 and  4.  The plaint allegations were that House no.104 (old number)  with its new numbers 175 and 176 described in the plaint belonged to one Pares Ram who had four sons namely,  Jagannath, Dina Nath, Anand Swaroop and Battu Mal.  The  pedigree was as follows:

PEDIGREE

PARES RAM

|                               |                               |                       | Jagannath                    Dina Nath                  Anand Swaroop   Battu Mal        |                        (died issue-less)                       |             |                                                          |

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Chandra Bhan                                    Surendra Kumar (adopted son)                                                   (son)

Smt. Shanti Devi

                                               _________________________________________                                 Chawali Devi            Satya Gupta             Brijesh Kuma r                                 (widow)         (daughter)              (adopted son)                                                         defendant no.1  defendant no.2

       Dina Nath died issue-less out.  During his lifetime he had  sold his 1/4th share to Battu Mal.  Surendra Kumar and his  mother (widow of Anand Swaroop) had sold their 1/4th share  to Smt. Satya Gupta by registered sale-deed.  Brijesh Kumar  defendant no.2 is the adopted son of Battu Mal. On the death  of Jagannath his son Chandra Bhan succeeded to share of  Jagannath in the suit property.  On the death of Chandra  Bhan his widow succeeded to the suit property. She executed  a sale-deed dated 26.7.1979 of her share in the suit property.   Thus the plaintiffs are co-sharers of 1/4th share in the suit  property whereas defendant nos.1 and 2 are co-sharers of 3/8  share each in the suit property. It is alleged that Jagannath  had no issue. He had adopted Chandra Bhan who happens to  be the son of his real sister and the sister’s husband’s name  was also Jagannath. Ceremony of adoption was performed in  accordance with the customs of the community prevalent  among the parties in the month of Flagun Samvat 1985. There  was a custom in the community of the co-sharers to adopt  sister’s son and Smt. Shanti Devi was wife of Chandra Bhan.  The plaintiffs wanted to get the suit property partitioned and  have their separate 1/4th share in the suit property. On the  above pleadings the relief claimed was that the suit property  be partitioned by metes and bounds and the plaintiffs be given  possession on the separate share allotted to them.

Defendant no.2 did not file any written statement and  suit against him proceeded ex-parte. Defendant no.1 (present respondent no.1) and  defendant nos. 3 and 4 contested the suit by filing separate  written statements.  Defendant no.1 in her written statement  denied the claim of the plaintiffs and it was pleaded that  plaintiff no.1 Om Prakash was tenant of Smt. Chawali Devi  on part of the land of the disputed property at the rate of  Rs.65/- per month as rent.  He inducted plaintiff no.2 as  subtenant.  Smt. Chawali Devi, mother of defendant no.1  Smt. Satya Gupta succeeded to the share of Chawali Devi in  the suit property.    She filed suit no.31 of 1985 for ejectment  of the plaintiffs, which was then pending.  The family  pedigree was accepted subject to the correction that Chandra  Bhan and Shanti Devi were wrongly shown as son of  Jagannath and widow of Chandra Bhan. Jagannath died  issueless.  Likewise Battu Mal had not adopted any son,  Brijesh Kumar, and defendant no.2 Brijesh Kumar was not  adopted son of Battu Mal. At the time of his death, Battu Mal  was owner of the entire suit property and on his death his  widow Smt. Chawali Devi became owner in possession and  on Chawali Devi’s death, defendant no.l Smt. Satya Gupta  being her daughter became owner in possession of the entire  suit property. The plaintiffs and other defendants have no  share in the suit property. The sale-deed executed by Smt.  Shanti Devi in favour of the plaintiffs is null and void.  Jagannath had not adopted Chandra Bhan son of his sister  and according- to the Hindu custom in ’Vaishya’ community

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sister’s son cannot be adopted. No such custom was  prevalent in the ’Vaishya’ community of Hapur. Hence the  alleged adoption was illegal. Jagannath died issueless about  50 years back and on his death Dina Nath, Anand Swaroop  and Battu Mal alias Jagat Swaroop became owners in  possession by survivorship and their names were mutated in  the Municipal records on the application moved by Dina  Nath and Battu Mal in the year of 1935. Thereafter Battu  Mal has purchased the share of Dina Nath and Anand  Swaroop and thus Battu Mal became sole owner of the suit  property. Relevant entries were made in the Municipal  records for the assessment years 1946-51. Battu Mal was  murdered. One Surendra Kumar and Smt. Basanti Devi had  no share in the suit property.  But in order to avoid any  dispute defendant Satya Gupta had purchased 1/2 share  from Surendra Kumar and Smt. Basanti Devi. Battu Mal had  never adopted Brijesh Kumar and Brijesh Kumar is son of  one Shambhu Saran who was distantly related to Battu Mal.  Brijesh Kumar was sentenced to life imprisonment for  committing the murder of Battu Mal in the year 1956 and  thus Brijesh Kumar was not entitled to succeed to the  property of Battu Mal.  One Sri Hari Shanker Bansal (father  of Defendants no. 3 and 4) was tenant of Smt. Chawali Devi  on part of the suit property for about last 25 years and he  had constructed one pucca room on the land under his  tenancy.  Plaintiff No.1, Om Prakash was also given 7 x 7 feet  land of suit property on rent by Smt. Chawli Devi on which a  temporary wooden Khokha was kept by Om Prakash in  which he was doing Crockery and Shamiyana business.  It  was also pleaded that Smt. Chawali Devi executed a will  dated 21.6.1962 in favour of Defendant 1 in respect to her  entire property. She died on 23.5.1980 and on her death  defendant no.1 filed Testamentary Suit No.1/81 in the High  Court on the basis of the will dated 21.6.1962 and she was  granted Letters of Administration on 9.4.1984.  Defendant  no.1 is in possession of the suit property for last about 20  years and her name is entered in the Municipal Records as  owner of the disputed property.  Plaintiffs never objected to  it.  The answering defendant sold by a registered sale deed  properties to Bansals (Defendants Nos. 3 & 4) and they are  necessary parties to the suit. Defendants Nos. 3 & 4 in their written statements  adopted the pleadings of defendant no.1 and categorically,  alleged that according to the Hindu custom sister’s son  cannot be adopted, hence alleged adoption of Chandra Bhan  by Jagannath was against law.

Plaintiffs filed replication in which it was reiterated that  in the Township of Hapur, where Jagannath, Anand Swaroop  etc. lived, there was a custom prevalent among Vaish  community to adopt son of sister. It was also pleaded that  since only Battu Mal lived in Ghaziabad, he got his name  mutated in the Municipal Records. In the sale deed executed  by Surendra Kumar and Basanti Devi in favour of defendant  No.l’s 1/4th share is shown to have been sold as 1/3rd share  to defendant no. l .

On the pleadings of the parties, the trial court framed a  number of issues. Relevant issues are issues nos.1 and 2  which were as follows:  

1.      Whether a custom was prevalent in Vaish community to  validly adopt son of the sister? 2.      Whether Jagannath had legally adopted Chandra Bhan  as a son, if so what is its effect?

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Both the parties adduced oral as well as documentary  evidence.  The trial court on consideration of the evidence  adduced before it and also on consideration of legal position  recorded finding that the plaintiffs have failed to establish that  Jagannath had legally adopted Chandra Bhan as his son.  They have also failed to establish that in the Township of  Hapur a custom was prevalent in Vaish community, to validly  adopt son of sister. The trial court also recorded a finding of  fact that the plaintiffs have failed to establish that the  formalities of adoption were observed in accordance with law.  On the other issue also the trial court recorded finding of fact  against the plaintiffs. The trial court accordingly dismissed the  suit.

 The First Appellant Court reversed the findings and held  that the custom of adoption was prevalent amongst  community and, therefore, Chander Bhan was the legally  adopted son of Jagannath in the suit property and on his  death, widow of Chander Bhan had 1/4th share in the  property. The plaintiff’s suit was accordingly decreed.  The  High Court in the second appeal formulated the following  questions for determination:                     

1.      Whether the plaintiffs/respondents have  successfully discharged the burden of proof to  establish that there existed a custom in the Vaish  community to which the lineal descendants of Paras  Ram belonged, to adopt the son of sister?

2.      Whether a Hindu belonging to the regenerated  class could be adopted after performance of ’Janeu’  ceremony?

3.      Whether for proving the factum of adoption it  was necessary to lead evidence of giving and taking  of an adopted child at the time of ceremony of  adoption?

4.      Whether recital in a document regarding  alleged adoption is sufficient for proving of the  factum of adoption?       3.      The High Court found that question no.3 as formulated  above was not a substantial question of law but held that  there was no prevalent custom permitting adoption of the  sister’s son and, therefore, the appeal was allowed.     

4.      In support of the appeal learned counsel for the  appellants submitted that the custom was established.  There  was enough material to show that the family members treated  Chander Bhan as the adopted son and, therefore, the First  Appellate Court’s judgment and decree should have been  maintained.  It was submitted that the Trial Court and the  High Court should not have given any undue importance to  the fact about the Jenau ceremony being held on the same  day, overlooking the fact that the evidence was being given by  the witness who was more than 80 years old.  It is submitted  that even if the defendants acquire any title because of the  transaction with Anand Swarup his share was 1/4th and in  any event the defendants cannot claim 1/3rd share. It is  further submitted that even if the stand about the acceptance  of Chander Bhan as an adopted son is to be accepted, that in

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any event do away with the requirement to prove legality of  adoption.  It is to be noted that the adoption took place  sometime in 1928-1929.   

       In response, learned counsel for the respondents  submitted that the custom was not established.  Evidence of  PWs 1, 2 and 3 did not prove existence of custom.  

       The rival stands need careful consideration.

6.      Since the alleged adoption took place prior to enactment  of Hindu Adoptions and Maintenance Act, 1956 (in short the  ’Act’), the old Hindu Law is applicable.   

It would be desirable to refer to certain provisions of the  Act, and the Hindu Code which governed the field prior to the  enactment of the Act. Section 3(a) of the Act defines ’custom’  as follows "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 applicable only to a family, it has not been  discontinued by the family;"

Section 4 provides that any text, rule or interpretation of  Hindu Law or any custom or usage as part of that law in force  immediately before the commencement of the Act shall become  inoperative with respect to any matter for which provision was  made in the Act except where it was otherwise expressly  provided. Section 4 gives overriding application to the  provisions of the Act.  Section 5 provides that adoptions are to  be regulated in terms of the provisions contained in Chapter II.  Section 6 deals with the requisites of a valid adoption. Section  11 prohibits adoption; in case it is of a son, where the adoptive  father or mother by whom the adoption is made has a Hindu  son, son’s son, or son’s son’s son, whether by legitimate blood  relationship or by adoption, living at the time of adoption.  Prior to the Act under the old Hindu Law, Article 3 provided as  follows

"Article 3-(1) A male Hindu, who has attained  the age of discretion and is of sound mind,  may adopt a son to himself provide he has no  male issue in existence at the adoption. (2) A Hindu who is competent to adopt may  authorise either his (i) wife or (ii) widow (except  in Mithila) to adopt a son to himself."

Where a son became an outcast or renounced Hindu religion,  his father became entitled to adopt another. The position has  not changed after enactment of Caste Disabilities Removal Act  (XXI of l850) as the outcast son does not retain the religious  capacity to perform the obsequial rites.  In case parties are  governed by Mitakshara Law, additionally adoption can be  made if the natural son is a congenital lunatic or an idiot.

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Relevant provisions relating to custom as defined in the Hindu  Code are as follows:

"Custom defined.-- Custom is an established  practice at variance with the general law. Nature of custom.- A custom varying the  general law may be a general, local, tribal or  family custom. Explanation 1.- A general customs includes a  custom common to any considerable class of  persons. Explanation 2.- A custom which is applicable  to a locality, tribe, sect or a family is called a  special custom.  Custom cannot override express law - (1) Custom has the effect of modifying the  general personal law, but it does not override  the statute law, unless it is expressly saved by  it. (2)     such custom must be ancient, uniform,  certain, peaceable, continuous and  compulsory. Invalid Custom \026 No custom is valid if it is  illegal, immoral, unreasonable or opposed to   public policy. Pleading and proof of custom \026 (1) He who  relies upon custom varying the general law  must plead and prove it. (2) Custom must be established by clear and  unambiguous evidence." (See Sir H.S. Gour’s Hindu Code Volume 1,  Fifth Edition.) Custom must be ancient, certain and  reasonable as is generally said.  It will be  noticed that in the definition in Cl. (a) of  Section 3 of the Act, the expression ’ancient’ is  not used, but what is intended is observance  of custom or usage for a long time.  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’ has not been strictly  applied to Indian conditions.  All that is  necessary to prove is that the custom or usage  has been acted upon in practice for such a  long period and with such invariability and  continuity as to show that it has by common  consent been submitted to as the established  governing rule in any local area, tribe,  community, group or family.  Certainty and  reasonableness are indispensable elements of  the rule.  For determination of the question  whether there is a valid custom or not, it has  been emphasized that it must not be opposed  to public policy.  I shall deal with the question  of public policy later on. The origin of custom of adoption assumes great  importance.  The origin of custom of adoption is lost in  antiquity.  The ancient Hindu Law recognized twelve kinds of  sons of whom five were adopted.  The five kinds of adopted  sons in early times must have been of very secondary  importance, for, on the whole, they were, relegated to an  inferior rank in the order of sons. Out of the five kinds of  adopted sons, only two survive today; namely, the. Dattaka  form prevalent throughout India and the Kritrima form

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confined to Mithila and adjoining districts. The primary object  of adoption was to gratify the means of the ancestors’ by  annual offerings and therefore it was considered necessary  that the offerer should be as much as possible a reflection of a  real descendant and had to look as much like a real son as  possible and certainly not be one who would never have been a  son. Therefore, the body of rules was evolved out of a phrase of  Saunaka that he must be ’the reflection of a son’. The  restrictions flowing from this maxim had the effect of  eliminating most of the forms of adoption. (See Hindu Law by  S. V. Gupte, Third Edition at pages 899-906).  The whole law of  Dattaka adoption is evolved from two important texts and a  metaphor. The texts are of Manu and Vasistha, and the  metaphor that of Saunaka. Manu provided for the identity of  an adopted son with the family into which he was adopted.  (See: Manu.Chapter IX, pages 141-142, as translated by Sir W.  Jones). The object of an adoption is mixed, being religious and  secular. According to Mayne, the recognition of the institution  of adoption in early times had been more due to secular  reasons than to any religious necessity, and the religious  motive was only secondary; but although the secular motive  was dominant, the religious motive was deniable. The religious  motive for adoption never altogether excluded the secular  motive. (See Mayne’s Hindu Law and Usage, Twelfth Edition,  page 329). As held by this Court in V.T.S. Chandrashekhara  Mudalie v. Kulandeivelu Mudalier (AIR 1963 SC 185),  substitution of a son for spiritual reasons is the essence of  adoption; and consequent devolution of property is mere  accessory to it; the validity of an adoption has to be judged by  spiritual rather than temporal considerations; and, devolution  of property is only of secondary importance.

In Hem Singh v.  Harnam Singh (AIR 1954 SC 581), it  was observed by this Court that under the Hindu Law  adoption is primarily a religious act intended to confer  spiritual benefit on the adopter and some of the rules have  therefore been held to be mandatory, and compliance with  them regarded as a condition of the validity of the adoption.  The first important case on the question of adoption was  decided by the Privy Council in the case of Amarendra  Mansingh v. Sanatan Singh, AIR 1933 PC 155. The Privy  Council said "Among the Hindus, a peculiar  religious significance has attached  to the son, through Brahminical  influence, although in its origin the  custom of adoption was perhaps  purely secular. The texts of the  Hindus are themselves instinct with  this doctrine of religious  significance. The foundation of the  Brahminical doctrine of adoption is  the duty which every Hindu owes to  his ancestors to provide for the  continuance of the line and the  solemnization of the necessary  rites."

With these observations it decided the question before it, viz.,  that of setting the limits to the exercise of the power of a  widow to adopt, having regard to the well established doctrine  as to the religious efficacy of sonship. In fact the Privy Council  in that case regarded the religious motive as dominant and the  secular motive as only secondary.

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This object is further amplified by certain observations of  this Court. It has been held that an adoption results in  changing the course of succession, depriving wife and  daughters of their rights, and transferring the properties to  comparative strangers or more remote relations. [See :  Kishori  Lal v. Chaltibai (AIR 1959 SC 504)]. Though undeniably in  most of the cases motive is religious, the secular motive is also  dominantly present. We are not concerned much with this  controversy, and as observed by Mayne it is unsafe to embark  upon an enquiry in each case as to whether the motives for a  particular adoption were religious or secular and an  intermediate view is possible that while an adoption may be a  proper act, inspired in many cases by religious motives, courts  are concerned with an adoption, only as the exercise of a legal  right by certain persons.  The Privy Council’s decision in  Amarendra Mansingh’s case (supra), has reiterated the well  established doctrine as to the religious efficacy of sonship, as  the foundation of adoption. The emhasis has been on the  absence of a male issue.  An adoption may either be made by a  man himself or by his widow on his behalf.  The adoption is to  the male and it is obvious that an unmarried woman cannot  adopt.  For the purpose of adoption is to ensure spiritual  benefit for a man after his death by offering of oblations and  rice and libations of water to the manes periodically. Woman  having no spiritual needs to be satisfied, was not allowed to  adopt for herself. But in either it is a condition precedent for a  valid adoption that he should be without any male issue living  at the time of adoption."

6.      In Mookka Kone v. Ammakutti Ammal [AIR 1928 Mad  299 (FB)], it was held that where custom is set up to prove  that it is at variance with the ordinary law, it has to be proved  that it is not opposed to public policy and that it is ancient,  invariable, continuous, notorious, not expressly forbidden by  the legislature and not opposed to morality or public policy. It  is not disputed that even under the old Hindu law, adoption  during the lifetime of a male issue was specifically prohibited.  In addition, I have observed that such an adoption even if  made would be contrary to the concept of adoption and the  purpose thereof, and unreasonable. Without entering into the  arena of controversy whether there was such a custom, it can  be said that even if there was such a custom, the same was  not a valid custom."                           

       It is incumbent on party setting up a custom to allege and  prove the custom on which he relies.  Custom cannot be  extended by analogy. It must be established inductively and  not by a priori methods. Custom cannot be a matter of theory  but must always be a matter of fact and one custom cannot be  deduced from another. It is a well established law that custom  cannot be enlarged by parity of reasoning.

       Where the proof of a custom rests upon a limited number  of instances of a comparatively recent date, the court may hold  the custom proved so as to bind the parties to the suit and  those claiming through and under them; but the decision  would not in that case be a satisfactory precedent if in any  future suit between other parties fuller evidence with regard to  the alleged custom should be forthcoming. A judgment relating  to the existence of a custom is admissible to corroborate the  evidence adduced to prove such custom in another case.  Where, however a custom is repeatedly brought to the notice  of the courts, the courts, may hold that the custom was

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introduced into law without the necessity of proof in each  individual case. Custom is a rule which in a particular family or a  particular class or community or in a particular district has  from long use, obtained the force of law. Coming to the facts of  the case P.W.1 did not speak any thing on the position either  of a local custom or of a custom or usage by the community,  P.W.2, Murari Lal claimed to be witness of the ceremony of  adoption he was brother-in-law of Jagannath son of Pares  Ram who is said to have adopted Chandra Bhan. This witness  was 83 years old at the time of deposition in the Court.  He did  not speak a word either with regard to the local custom or the  custom of the community. P.W.3 as observed by the lower  appellate Court was only 43 years’ old at the time of his  deposition where as the adoption had taken place around 60  years back. He has, of course, spoken about the custom but  that is not on his personal knowledge and this is only on the  information given by P.W.2, Murari Lal. He himself did not  speak of such a custom. The evidence of a plaintiff was thus  insufficient to prove the usage or custom prevalent either in  township of Hapur and around it or in the community of  Vaish.  The evidence of D.W.3 refers only to one instance.   From his evidence it cannot be inferred that Om Prakash had  adopted Munna Lal who was his real sister’s son. As already  pointed out above, the trial court found that the evidence of  D.W.3 was not so clear and unambiguous as to lead to no  other conclusion except that Munna Lal was son of real sister  of Om Prakash. Besides, this solitary instance of adoption of  his sister’s son cannot amount to long usage, which has  obtained the force of law. Mulla has categorically commented  that where the evidence shows that the custom was not valid  in numerous instances, the custom could not be held to be  proved. A custom derives its force from the evidence from long  usage having obtained the force of law.           All that is necessary to prove is that usage has been  acted upon in practice for such a long period with such  invariability as to show that it has, by consent, been  submitted so as to establish governing rules of a particular  locality or community.   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 long that the  memory of man runneth not to the contrary" should not be  strictly applied to Indian conditions. 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. A custom may be proved by general evidence as to its  existence by members of the tribe or family who would  naturally be cognizant of its existence, and its exercise without  controversy, and such evidence may be safely acted on when it  is supported by a public record of custom such as the Riwaj-i- am or Manual of Customary Law. In yet another decision reported in Hem Singh and  another v. Hakim Singh and another (AIR 1954 SC 581),  this  Court observed that the custom recorded in the ’Riwaj-i-am’ is  in derogation of the general custom and those who set up such  a custom must prove it by clear and unequivocal language.  Similarly, when a custom is against the written texts of the  Hindu Law then, one who sets up such a custom must prove it  by a clear and unequivocal language. It may also be pointed  out that the settled law is that for a valid adoption, not only  the person adopting should be capable of lawfully taking in

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adoption; but the person giving must be capable of lawfully  giving in adoption and the person adopted must be capable of  being lawfully taken in adoption. It is necessary that all these  three conditions should be satisfied and that it is not sufficient  that one of them be satisfied. In the case of Hem Singh (supra)  this court quoted with approval of some of the observations in  Mulla’s Principles of Hindu Law at Page 541 of XI Edition with  such observations in paragraph 434 to the following effect:  

"It has similarly been held that the texts which  prohibit the adoption of an only son, and those  which prohibit the adoption of an only son,  those which enjoin the adoption of a relation in  preference to a stranger, are only directory;  therefore, the adoption of an only son, or a  stranger in preference to a relation, if  completed, is not invalid; that in cases such as  the above, where the texts are merely  directory, the principle of factum valet applies,  and the act done is valid and binding."

But just thereafter the following observations occurred in  the same paragraph :

"But the texts relating to the capacity to give,  the capacity to take, and the capacity to be the  subject of adoption are mandatory. Hence the  principle of factum valet is ineffectual in the  case of an adoption in contravention of the  provisions of those texts."

       So far as the evidence adduced is concerned, reliance  was placed on the evidence of three witnesses.  As noted above  PW 1 did not speak about any custom.  Similarly, PW 2 did  not speak about any custom though he claimed to be present  at the time of adoption.  The present appellant was PW 3. He  is outsider of the family.  He also accepted that he did not  have personal knowledge about the custom.  He only stated  that PW2 told him about the custom.  Significantly PW2 did  not speak about any existence of any custom.  Appellant PW 3  also accepted that he did not find out as to what was the  custom if any and also that he does not know any other  instance.  Though the Appellate Court had referred to evidence  of DW3 to hold that he had accepted that the custom was in  existence.  As a matter of fact, his evidence is contrary to and  is specific that there was no custom. The First Appellate Court  had relied on the evidence of Munna Lal to conclude that the  son of Reba Saran was given in adoption.  Munna Lal  specifically stated that the son of Jagannath who was taken in  adoption is not the son of sister of Saran.                 8.      In view of the aforesaid factual situation and the  principles of law enumerated above, the inevitable conclusion  is that the appeal is sans merit, deserves dismissal, which we  direct.