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CASE NO.: Appeal (civil)  5689 of 2006

PETITIONER: Bhimashya and Ors.

RESPONDENT: Smt. Janabi @ Janawwa

DATE OF JUDGMENT: 11/12/2006

BENCH: Dr. ARIJIT PASAYAT & LOKESHWAR SINGH PANTA

JUDGMENT: J U D G M E N T (Arising out of S.L.P (C) No. 26558 of 2005)

Dr. ARIJIT PASAYAT, J.

       Leave granted.

       Challenge in this appeal is to the judgment rendered by a  learned Single Judge of the Karnataka High Court dismissing  the Second Appeal filed by the appellants who are defendants  in the suit filed by the respondent as plaintiff. In the impugned  judgment the High Court held that the stand taken by the  defendants that defendant No.1 was the adopted son of one  Fakirappa, was not established. However, it granted relief in  respect of property at item No.3 in the schedule to the plaint,  which the first Appellate Court had held to be ancestral  property of Fakirappa. High Court held that the said property  is the self acquired property of defendant No.1 and the plaintiff  is not entitled to any share in the said property. The parties  are described in the manner they were arrayed in the suit filed  by the plaintiff.

       The factual position, in a nutshell, is as follows:

       The plaintiff filed the suit for partition and separate  possession of her half share in the suit properties and for  mesne profits averring that one Fakirappa, the propositus died  on 19.3.1965.  He had two wives, namely: Bhimawwa, the first  wife and Basawwa, the second wife.  Basawwa, died about 35  years before filing of the suit. Fakirappa had two daughters  namely, Kallawwa, who was born to Bhimawwa, the first wife  and Janabi, the plaintiff who was born to the second wife  Basawwa. The said Kallawwa is the wife of defendant No.1  while defendants 2 and 3 are the sons of defendant No.1.  It is  further averred that the suit properties are the ancestral and  joint family properties and since Fakirappa died leaving  behind the plaintiff and the wife of the defendant No.1 and  defendant Nos. 2 and 3 are the sons of the 1st defendant, after  the death of Fakirappa, the plaintiff is entitled to half share in  the suit schedule properties.   

       The defendant No.1 resisted the suit by filing the written  statement averring that the defendant No.1 is the validly  adopted son of the deceased Fakirappa.  He has been wrongly  described in the plaint. Fakirappa and his wife, Bhimawwa  had validly adopted the defendant No.1 on 28.3.1960 by  observing and performing all the necessary customary and

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religious ceremonies including giving and taking and they have  also executed a registered adoption deed in favour of the  defendant No.1. Suit house properties were not of the  ownership of the deceased Fakirappa. They are the self  acquired properties of defendant No.1 and the plaintiff cannot  claim any share in the same. Averment made in the plaint that  the plaintiff is the daughter of Fakirappa through the second  wife, is not correct and the plaintiff is put to strict proof of the  same.  Since the death of Fakirappa, the defendants have been  in exclusive possession and enjoyment of the suit properties  openly and without anybody’s obstruction as exclusive owners  thereof. The plaintiff has been ousted from the enjoyment of  the suit properties since the death of Fakirappa. The plaintiff  having not taken any step towards asserting her right in  respect of the suit properties is not entitled to any relief in the  suit.

       The trial Court framed 11 issues and came to hold that  defendant No.1 is the adopted son of Fakirappa.  The present  appeal does not relate to the other issues and, therefore, we  are not dealing with those issues in detail. Questioning the  conclusion of the trial Court that defendant No.1 was the  adopted son of Fakirappa, an appeal was filed. The First  Appellate Authority held that the claim of adoption of  defendant No.1 is untenable and even when there was a  registered deed of adoption, the same was of no consequences  and the adoption, if any, had no sanctity in the eye of law. It  also held that the property described as Item No.3 was  ancestral property.  The defendants preferred an appeal under  Section 100 of the Code of Civil Procedure, 1908 (in short ’the  CPC’) questioning correctness of the First Appellate Court’s  conclusions.  The High Court, by the impugned judgment, as  noted above, granted partial relief.

       So far as the question of adoption is concerned, it was  held that appellant No.1 was married to the daughter of  Fakirappa, the adoption was claimed to have been made on  28.3.1960 and the adoption deed was registered on 31.3.1960  which was at a time when The Hindu Adoption and  Maintenance Act, 1956 (in short ’the Act’) was in operation.  The defendant No.1 was more than 15 years of age and,  therefore, could not have been adopted and, therefore, his  adoption, if any, cannot be recognized in law. Relief was  granted in respect of Item No.3 property.

       In support of the appeal, learned counsel for the  appellant submitted that though the Act was in operation  when the adoption took place, it is really of no relevance  because according to the customs prevalent in the area and  the families of appellants, the adoption is clear, legal and  proper.

There is no appearance on behalf of the respondent in  spite of notice.

It is to be noted that no issue regarding custom was  framed by the Trial Court. But because of the finding recorded  by the trial Court, the First Appellate Court dealt with it.  The  High Court has categorically noticed that there was no  pleading regarding custom and no evidence in that regard was  led. Learned counsel for the appellant, with reference to  certain observations made by the Trial Court, submitted that  the question was very much in the minds of the parties and  though no specific issue was framed, yet, the evidence laid  clearly established the claim regarding adoption. It is

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submitted that judicial notice can be taken note of the fact  that in the area to which the parties belong there is no  prohibition on adoption in the manner done and it is  recognized and permissible under the custom to make an  adoption, as has been done in the present case.

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 (Hindu Code) Article  3 provides as follows:

"Article 3\027-(1) A male Hindu, who has  attained the age of discretion and is of sound  mind, may adopt a son to himself provided he  has no male issue in existence at the date of  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."

Therefore, prior to the enactment of the Act also adoption  of a son during the lifetime of a male issue was prohibited and  the position continues to be so after the enactment of the Act.  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 1850), as the outcast son does not retain the religious  capacity to perform the obsequies 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. The  question, therefore, is whether by custom, the prohibition

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could be overcome. Relevant provisions, therefore, is whether  by 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 custom 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 called a  special custom.

Custom cannot override express law.\027

(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 - 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 HS. Gour’s Hindu Code, Volume I.  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 of 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.  

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

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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 from prevalent throughout India  and the Kritrima for 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 has 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. Gupta. Third edition at pages 899 -  900). 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\027142, 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 only dominant, the religious  motive was undeniable. 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  Mudalier v. Kulandeivelu Mudalier (AIR 1963 SC 185),  substitution of a son for spiritual reason 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  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

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in that case regarded the religious motive as dominant and the  secular motive as only secondary.

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  dominant 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  Amerendra Mansingh’s case (supra) has reiterated the well  established doctrine as to the religious efficacy of sonship, as  the foundation of adoption. The emphasis 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 need to be satisfied, was not allowed to  adopt for herself. But in either case it is a condition precedent  for a valid adoption that he should be without any male issue  living at the time of adoption.

Under the old law, ’male issue’ was indicated and it was  held at it was to be taken in the wide sense peculiar to the  term in Hindu Law to mean three direct descendants in the  male line. (See Mayne’s Hindu Law and Usage referred to  above at page 334).  Even if for the sake of argument in the  instant case, it is accepted that a custom was prevalent  authorising adoption in the presence of a male issue, yet it  being contrary to the very concept of adoption cannot be said  to have any force. Adoption is made to ensure spiritual benefit  for a man after his death. Public policy is not defined in the  Act. However, it connotes some matter which concerns the  public good or the public interest. No strait-jacket formula can  be laid down to hold what is for the public good or for the  public interest, or what would be injurious or harmful to the  public good or public interest. What is public good must be  inconsonance with public conscience. Speaking about ’public  policy’, Lord Atkin said, "the doctrine should only be invoked  in clear cases in which the harm to the public is substantially  incontestable, and does not depend upon the idiosyncratic  inference of a few judicial minds. (See Fender v. St. John  Mildmay 1938 AC 1). The observations were quoted with  concurrence in Gherulal v. Mahadeo Das, (AIR 1959 SC 781).  Though it cannot be disputed as a general proposition that a  custom may be in derogation of Smriti law and may supersede  that law where it is proved to exist, yet it is subject to the  exception that it must not be immoral or opposed to public  policy and cannot derogate from any statute unless the statute  saves any such custom or generally makes exception in favour  of rules of customs.  (See: Mulla’s Principles of Hindu Law,  Fifteenth Edition, at pages 67-68).  Nothing has been shown to  me that an exception of this nature existed in the old Hindu  Law. The ancient texts provide for a custom, but imperate it  not to be opposed to Dharma, that means as already pointed

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out it should not be immoral and opposed to public interest.  

It is well established principle of law that though custom  has the effect of overriding law which is purely personal, it  cannot prevail against a statutory law, unless it is thereby  saved expressly or by necessary implication. (See   The Magistrate of Dunbar v. The Duchess of Roxburgha (l835)  6 ER 1642), Noble v. Durell (1789)100 ER 569).  A custom may  not be illegal or immoral; but it may, nevertheless, be invalid  on the ground of its unreasonableness. A custom which any  honest or right-minded man would deem to be unrighteous is  bad as unreasonable. [See: Paxton v. Courtnay (1860)2 F & F  131)].

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.  

A custom is a particular rule which has existed either  actually or presumptively from time immemorial, and has  obtained the force of law in a particular locality, although  contrary to or not consistent with the general common law of  the realm. A custom to be valid must have four essential  attributes.  First, it must be immemorial; secondly, it must be  reasonable; thirdly, it must have continued without  interruption since its immemorial origin, and, fourthly, it must  be certain in respect of its nature generally as well as in  respect of the locality where it is alleged to obtain and the  persons whom it is alleged to affect. (See HALSBURY, 4th Edn.,  Vol. 12, para 401, p.2 & para 406, p.5).        

Is a law not written, established by long usage, and the  consent of our ancestors?  No law can oblige a free people  without their consent: so wherever they consent and use a  certain rule or method as a law, such rule etc., gives it the  power of a law and if it is universal, then it is common law: if  particular to this or that place, then it is custom.  Custom is  one of the main triangles of the laws of England; those laws  being divided into Common Law - Statute Law, and Custom.   India is a land where there are very many customs appropriate  to certain areas of territory; families or castes.

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 Conditions.  (See Thakur Gokalchand  v. Parvin Kumari AIR 1952 SC 231).    

"A custom is local Common Law. It is Common Law  because it is not Statute Law; it is Local Law because it is the  law of a particular place, as distinguished from the general  Common Law.  Local Common Law is the law of the country  (i.e., particular place) as it existed before the time of legal  memory" (per Jessel, M.R., Hammerton v. Honey, 24 WR 603).

Custom implies, not that in a given contingency a certain  course would probably be followed, but that contingency has  arisen in the past and that a certain course has been followed,  and it is not at all within the province of Courts to extend  custom by the process of deduction from the principles which

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seem to underline customs which have been definitely  established.

Custom is authoritative, it stands in the place of law, and  regulates the conduct of men in the most important concerns  of life: fashion is arbitrary and capricious, it decides in matters  of trifling import: manners are rational; they are the  expressions of moral feelings. Customs have more force in a  simple state of society.

Both practice and custom are general or particular but  the former is absolute, the latter relative; a practice may be  adopted by a number of persons without reference to each  other; but a custom is always followed either by imitation or  prescription: the practice of gaming has always been followed  by the vicious part of society; but it is to be hoped for the  honour of man that it will never become a custom.                   There was no specific plea relating to custom though  some vague and indefinite statements have been made in the  plaint and that too in a casual manner. No issue was framed  and no evidence was laid to prove custom.

That being so, the High Court’s order does not suffer  from any infirmity to warrant interference. The appeal fails  and is dismissed but, in the circumstances, without any order  as to costs.