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PETITIONER: DANIRAIJI VRAJLALJI, JUNAGADH

       Vs.

RESPONDENT: VAHUJI MAHARAJ SHRI CHANDRAPRABHA WIDOW OFDECEASED MAHARAJ S

DATE OF JUDGMENT13/12/1974

BENCH: MATHEW, KUTTYIL KURIEN BENCH: MATHEW, KUTTYIL KURIEN BHAGWATI, P.N. UNTWALIA, N.L.

CITATION:  1975 AIR  784            1975 SCR  (3)  32  1975 SCC  (1) 612

ACT: Hindu Adoptions and Maintenance Act, (78 of 1956) Ss. 4,  15 and 30-Goda Dutta adoption made before commencement of  Act- Custom of revocability of such adoption-If affected by Act.

HEADNOTE: Section  4(a)  of the Hindu Adoptions and  Maintenance  Act, 1956,  provides  that  any  custom of  Hindu  law  in  force immediately before the commencement of the Act, shall  cease to  have  effect  with  respect  to  any  matter  for  which provision  is made in the Act.  Section 15 provides that  no adoption which has been validly made can be cancelled by the adoptive  father  or  mother nor  can  the  adopted’  person renounce  such  status;  and s.  30  provides  that  nothing contained  in the Act shall affect any adoption made  before its  commencement, and, the validity and effect of any  such adoption  shall  be determined as if the Act  had  not  been passed. The appellant claimed that he was adopted by the  respondent in 1956, before the Act came into force, in the ’Goda Datta’ form.   The respondent filed a suit for a  declaration  that the  appellant  was not so adopted, and while the  suit  was pending,  she made a written declaration stating,  (a)  that the adoption had nevel taken place, and (b) that even if  it was  believed that it had taken place it stood  revocked  by that  document.   The trial court decreed the suit  and  the High Court confirmed the decree. (Per Bhagwati and Untwalia, JJ.) Dismissing the appeal to this Court. HELD : An adoption in the ’goda datta’ form made before  the commencement  of the Act, can be cancelled after the  coming into force of that Act. (per Bhagwati, J.), (a)  Section  15 has no application to adoption  made  prior to- the coming into the force of the Act.  The first part of s. 30 enacts the main saving provision.  The second part  is merely  a provision introduced ex abundanti cautela  with  a view  to  emphasizing that the validity and  effect  of  the adoption  made  before  the commencement of  the  Act  shall remain  untouched by the provisions of the Act. it is  clear from the plain and unambiguous language of the first part of

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the  section  that the legislature intended to  exclude  the applicability  of all provisions contained in the Act to  an adoption  made  before the commencement of the Act  and  not merely  the applicability of those provisions  which  affect the validity and effect of such adoption.  The true  meaning and effect of the first part of the section, uninhibited  by the provisions in the second part, is that nothing contained in  the  Act  shall affect any adoption made  prior  to  the commencement  of  the Act.  The word ’affect’ is a  word  of wide import and in the context in which it occurs it must be construed  to  mean  ’touch’ of ’relate  to’  or  ’concern’. Therefore, nothing contained in the Act shall touch or apply to  an adoption made prior to the commencement of  the  Act. So construed, what s. 30 enacts is that nothing contained in the  Act-and that includes s. 15-shall touch or concern,  or in  other words apply to an adoption made prior to the  Act. [37C-38D; 39C.] (b)  The  intendment and effect of s. 4(a) of the Act is  to abrogate  the  existing  law or custom in so far  as  it  is replaced  by the law enacted in the statute.  If there is  a provision  made  in the statute which operates in  the  same area  as  there  existing  law  or  custom,  the   statutory provision  must prevail and the existing law of custom  must give  way.   If s. 15 were applicable to  an  adoption  made prior to the Act it would govern the matter of cancellation; but  the section applies only to an adoption made after  the commencement of the Act, and therefore, so far as 33 the  matter  relating to cancellation of  an  adoption  made before  the  act is concerned, any existing  law  or  custom making provision in that behalf cannot be said to have  been abrogated by reason of s. 4(a).  Hence, if an adoption could be cancelled by the adopter prior to the commencement of the Act,  the  right of the adopter to cancel it  is  not  taken away.  Such a custom enabling cancellation would continue in force  and govern the matter of cancellation of an  adoption made before the commencement of the Act. [39E-H] (c)  Prior to the commencement of the Act, by custom, a goda datta adoption could be cancelled by the adopter.  The  Act, in  Ss.  5  to  1  1,  has  laid  down  the  conditions  and requirements for making an adoption.  Therefore, the  custom of  goda  datta  adoption  ceases to  be  in  force  on  the commencement  of the Act by virtue of s. 4(a); that  is,  no such  adoption could be made after the commencement  of  the Act  according to custom, and consequently, no  question  of its  cancellation could arise.  But, where the adoption  was made before the Act, the custom gave a right to the  adopter to  cancel  the adoption and this custom, in so  far  as  it operated  on  the adoption made prior to the  Act,  did  not cease  to  be  in  force under s. 4(a),  as  s.  15  is  not applicable to such an adoption. [40 A-C] (d)  It  is true that the custom of goda datta adoption  has two  limbs-One  relating to the making of adoption  and  the other  providing for its revocability at the option  of  the adopter.   Therefore, since the custom of such  an  addition has  ceased to be forced on the commencement of the Act,  as regards adoption made subsequent to the Act, the second limb also  came to an end, because, if no such adoption could  be made  after  the commencement of the Act there could  be  no question  of  its cancellation; but, where under  the  first limb  the adoption was already made before the  commencement of the Act, the second limb would not have to depend for its survival  on the continuance of the first. in such  a  case, the second limb of the custom could operate, and in relation to  such  an adoption, the second limb would be the  law  in

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force.  Therefore, the second limb of the custom relating to revocability  continued in force in its application to  such an adoption.                  [40C-H] (Per Untwalia, J.) (1)  There is no substance in the contention that revocation could be made only on some reasonable grounds and the custom required it to be so.  No reason was necessary to be  stated or proved to sustain the revocation. [43G-H] (2)  In  the deed of cancellation the respondent had  stated that  if it was believed that the respondent had  taken  the appellant in adoption, then she was cancelling and annulling it.  It could not, therefore, be said that the document does not legally revoke the adoption. [43A; 44A-B] (3)  (a)  Section  30  is a saving clause  in  the  Act  and according to it the provisions of the Act are not to  affect any  adoption made before its commencement, that is to  say, the validity of the adoption made before the commencement of the  Act  as also its effect will have to  be  examined  and determined  with  reference to the law or the custom  as  it stood  prior to the coming into force of the Act and not  in accordance  with it.  The expression "affect  any  adoption" necessarily mean; affect in adoption as to its "validity and effect".   Neither of the expression takes within its  sweep any of the other incidents or characteristics of the law  or the custom of adoption under which it was made.   Therefore, the incident or characteristic of this custom which entitled either  party  to  revoke  the adoption  was  not  a  matter concerning the validity and effect of adoption, and the High Court was not right in holding that the right of  revocation is one of the effects or goda datta adoption and is saved by s. 30. [44D-B] (b)  Section 4 is clearly prospective and not retrospective. No  adoption could be made in the goda datta form after  the coming  into  force of the Act and hence there would  be  no question of its revocation. if s. 15 prohibits  cancellation of  an adoption validly made even prior to the  commencement of the Act then it is manifest that s. 4 finishes the custom of  cancellation  after the commencement of the  Act,  by  a prospective  operation  and not by any  retroactive  action. The question therefore, would be whether cancellation of the adoption  of the appellant was in contravention of s. 15  of the  Act.   If it was so, the cancellation was  invalid  and could not be saved by s. 30. [46D-G] 4-L379Sup CI/75 34 (c)  Section 15, however, applies only to an adoption  which has  been validly made in accordance with the provisions  of the Act and after its commencement.  In its context and  set up,  its  applicability cannot be enlarged and  the  section can.not be permitted to embrace any adoption which has  been validly made before      the  commencement of the  Act.  The legislature did not intendto  change  the  incident   or characteristic  of  a goda datta adoption,  which  made  the position of the adopted person in that form, nothing  higher than that of adignified  employee engaged to perform  rites and enjoy the privileges for the timehe  continued to  be such a son. Or it may be that the legislature  inadvertently lift thecustom  of  revocability of  goda  datta  adoption untouched by s. 15. Ineither    view   of   the    matter cancellation,  of the adoption of the appellant made by  the respondent,  by  the registered document, is  in  accordance with  the  custom  of  goda datta and  hence,  there  is  no violation of the law contained in s. 15. [47 C-G] Per  Mathew,  J; (dissenting) (1) The custom of  goda  datta adoption  has been abrogated by s. 4(1) read with s.  5  of

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the Act and s. 30 saves only the effect ;and validity of  an adoption made before the Act.  But it is difficult to  think how a custom revoking such an adoption could  continue  in force  after the custom of making the adoption in that  form has  been abrogated by the Act, because, the continuance  of the   custom   of  cancellation  was  dependent   upon   the continuance of the custom of making the adoption, [35B-D] (2)The  Act  provides  only for the  method  and  form  of adoption after the cominginto  force of the Act and  it has made no provision for cancellation of an adoption except in  s. 15.  Assuming that s. 15 relates only to an  adoption made after the commencement of the Act, unless the right to cancel  the  adoption under the custom become an.  accrued right  before  the commencement of the Act, the  -custom  of cancelling  an adoption would not continue.   Therefore,  if the  adoption  wants to cancel such an  adoption  after  the commencement  of the Act he can do so only by  establishing that he had an accrued right on the date of adoption or, at any rate, before the abrogation of the custom to cancel  it, in  which case, the ,custom to cancel the adoption would  be deemed  to  continue for cancelling it  notwithstanding  the fact  that,  as custom, it has ceased to operate  after  the commencement  of the Act.  The effect of the  abrogation  of the  custom can be equated in principle to the repeal  of  a law. [35E-H] (3)That apart, the legislature has saved by s. 30 only  an adoption  made,  before the Act, its  validity  and  effect. When  the  legislature  has,  chosen  to  make  a   specific provision  to  save  only the validity  and  the  effect  of adoptions already made,, (-which would have been saved  even without such a provision under the ,general principle of law notwithstanding the abrogation of the custom) the  inference is  that the legislature did-not want to save the  right  to cancel  the adoption.  The express saving in s. 30  of  only the  validity and effect of adoption can only lead to  the. conclusion  that  the legislature did not want to  save  the incident of  revocability  attached  to  it  by   custom. Expression facit cessare tacitum. [36C-F]

JUDGMENT: CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  1466  of 1970. Appeal  from  the judgment and decree dated the  16th  April 1970 of the Gujarat High Court in Appeal No. 744 of 1961. V.   S.  Desai, R. M. Hazarnavis, R. N. Dhebar, K. L.  Hathi and J.    R. Nanavati, for the appellant. S.  T.  Desai,  D.  D.  Vyas  and  I.  N.  Shroff,  for  the respondent. The majority view was expressed by P. N. Bhagwati, J. and N. L.  Untwvalia, J. in separate judgments.  K. K.  Mathew,  J. delivered a dissenting opinion. MATHEW,  J.-The  question is, whether an  adoption  made  in "Goda Datta" form, a customary mode of adoption, before  the passing  of  the Hindu Adoptions and Maintenance  Act,  1956 (hereinafter  called  the ’Act’), could  be  cancelled  or revoked after its commencement. 35 The  relevant provisions of the Act have been considered  in the  judgment of my learned brother Untwalia, J. and he  has come  to  the  conclusion  that the  custom  of  Goda  Datta adoption has been abrogated by s. 4(1) read with s. 5 of the Act, and that s. 30 saves only the validity and effect  of

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adoption   made  before  the  Act.   I  agree   with   these conclusions.  I will also assume that s. 15 deals only  with cancellation  of  adoption made after the Act.  Even  so,  I cannot agree with his ultimate conclusion that the  adoption made  in the instant case could be cancelled after  the  Act came into force. Since  the  custom of adoption in Goda Datta form  has  been abrogated by virtue of s. 4(1) read with s. 5 of the Act,  1 do not think that the custom to cancel or revoke an adoption in  that form could continue after the commencement  of  the Act.  It is difficult to think how a custom of revoking  an adoption  in Goda Datta form could continue in  force  after the  custom  of  making  adoption  in  that  form  has  been abrogated  by  the Act.  The continuance of  the  custom  of cancellation of Goda Datta adoption was dependent upon  the. continuance  of the custom of making adoption in that  form, With  the abrogation of the custom of adoption in that  form by  s.  4  (1)  read with s. 5 of the  Act,  the  custom  of cancellation also stood abrogated.  I cannot understand  how one limb of that custom could survive the destruction of the other as both the customs were inseparably intertwined. The  Act provides only for the method and form  of  adoption after  the  coming into force of the Act.  It  has  made  no provision  for  cancellation  of adoption except  in  s.  15 which,  I will assume, relates only to adoption  made  after the  commencement of the Act.  Yet, I do not think that  the custom of cancellation of adoption in Goda Datta form  could continue after the custom of making adoption in that  form has ceased to operate after the commencement of the Act.  In other words, although there is no separate provision in  the Act for cancelling an adoption made before the  commencement of  the Act, it is difficult to imagine how any  legislature could   provide  for  the  continuance  of  the  custom   of cancellation, which is an incident of the custom of adoption in  that  form, without continuing in force  the  custom  of adoption in that form. What  then is the effect of the abrogation of the custom  of cancelling  adoption  in  Goda Datta form  along,  with  the custom of adoption in that form ? I should have thought  the question could admit of only one answer and that is that the adoption  cannot be cancelled after the commencement of  the Act,  unless  the  right to cancel the  adoption  under  the custom  became an accrued right before the  commencement  of the  Act.   Therefore, if the adopter wanted  to  cancel  an adoption  in Goda Datta form after the commencement  of  the Act,  he  could do so only by establishing that  he  had  an accrued  right on the date of the adoption or, at any  rate, before the abrogation of the custom, to cancel it, in  which case,  the custom to cancel the adoption would be deemed  to continue  for cancelling it, notwithstanding the fact  that, as  custom, it has ceased to operate after the  commencement of  the Act.  In principle, the effect of abrogation of  the custom  of  cancelling an adoption is much the same  as  the repeal of a law.  The past operation 36 of  the  custom  would  be wiped out  except  as  to  rights accrued.   A  right  to take advantage of  the  custom  of cancelling an adoption, like the right to take advantage  of a provision of law providing for cancelling an adoption,  is not an accrued right.  "There is no presumption that an  Act is  not  intended to interfere with existing  rights.   Most Acts  of  Parliament, in fact, do  interfere  with  existing rights"(1) In order to raise the presumption, the right must be  an acquired, accrued or vested right.  Before  the  Act came  into  operation and when the custom was in  force,  an

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adaptor  could  have cancelled the adoption  by  taking  ad- vantage of the custom and that was certainly a right to take advantage of the custom.  But the question is, when the  Act abrogated the custom, whether it was an accrued or  acquired right in order to raise the presumption that the legislature did not intend to interfere with it. That apart, the legislature has saved by s. 30 only adoption made   before  the  Act,  its  validity  and   effect;   the revocability of an adoption which does not pertain either to its  validity  or effect has not been saved.   Even  if  the legislature  had not provided in s. 30 for  saving  adoption already made, its validity and effect being accrued  rights, would  have been saved under the general principle  of  law, notwithstanding the abrogation of the custom of adoption  in Goda  Datta form by the Act in the absence of any  provision to  the contrary in the Act.  But when once the  legislature has chosen to make a specific provision and to save only the validity and effect of adoptions already made, the inference is  that the legislature did not want to save the  right  to cancel  the  adoption.   Nothing  was  more  easy  for   the legislature, if it wanted to save any other right  attaching to adoption already made, than to say so expressly as it has done  with respect to its validity and effect.  The  express saving in s. 30 of only the validity and effect of adoption can only lead to the conclusion that the legislature did not want to save the incident of revocability attaching to it by custom.   Expressum tacit cessarc tacitum.  Seeing that  the legislative  policy  was  to put a stop  to  the  custom  of cancelling adoption, I need have no qualms in presuming that Parliament did not want to save the right to cancel adoption by s. 30. I would allow the appeal without any order as to costs. BHAGWATI,  J.  I  agree with the conclusion  reached  by  my learned brother Untwalia, J., but I would prefer to give  my own reasons in support of that conclusion. The question that arises for determination in the appeal  is whether  an adoption in the Goda-datta form made before  the passing  of  the Hindu Adoption and  Maintenance  Act,  1956 (hereinafter referred to as the Act) can be cancelled  after the  coming  into force of that Act.  What is  a  Goda-datta form  of  adoption  and  what are  its  incidents  has  been discussed  in the judgment of my learned  brother  Untwalia, J., and I need not repeat what has been so ably and  lucidly explained  there.  Suffice it to state that the  Goda-datta- form   of  adoption  is  a  customary  form   prevalent   in Vallabhkul; neither dutta-homam nor actual giving and taking is necessary for making such adoption; it does (1)  see per Buckley L.J. in West v. Gwyppe. (1911) 2 Ch.  1 at 12. 37 not  sever the relationship of the adopted with his  natural family an he continues to be entitled to his lights in  that family;  he  can be taken in this form of adoption  in  more families than one and such adoption can be cancelled at  any time  by the adopter or the adoptee at his sweet will.   If, therefore, the Act had not come into force, there can be  no doubt  that  according  to custom  the  goda-dutta  form  of adoption  could be cancelled by the adopter at any  time  he liked.  The question is : Has the enactment of the Act  made any difference ? Three sections of the Act are material, namely, Sections  4, 15  and 30. I will first turn to section 15.   That  section provides  :"No adoption which has been validly made  can  be cancelled  by  the adoptive father or mother, or  any  other person, nor can the adopted child renounce his or her status

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as  such and return to the family of his or her  birth."  My learned brother Untwalia, J., has analysed the scheme of the Act  and shown that section 15 applies only to an  adoption which   has  been  validly  made  in  accordance  with   the provisions  of the Act after its commencement and it has  no application  to  an adoption made prior to the  coming  into force  of  the Act.  I agree so entirely with  him  in  this interpretation  of  section  15  that  I  do  not  think  it necessary  to add  anything to what he has  said  in  this connection.   I only wish to point out that section  30,  on the  construction  which I place upon  it,  reinforces  this interpretation  of section 15.  Section 30 enacts  a  saving provision.   It says : "Nothing contained in this Act  shall affect  any  adoption made before the commencement  of  this Act, and the validity and effect of any such adoption  shall be  determined as  if this Act had not  been  passed."  My learned brother Untwalia, J., has taken the view with  which my  learned brother Mathew, J., has agreed, that the  second part  of this section merely clarifies what is  embodied  in the  first  and  the first part does not  go  beyond  saving merely  the validity and effect of an adoption  made  before the  commencement of the Act.  I have tried hard but I  find it   difficult   to   persuade   myself   to   accept   this interpretation of the section.  I do not think it would  be right to read the second part of the section as  controlling the first.  It is the first part of the section which enacts the  main saving provision and the second part is  merely  a provision  introduced ex abundantau citela, with a  view  to emphasising that the validity and effect of an adoption made before the commencement of the Act shall remain untouched by the provisions contained in the Act and be determined as  if the Act had not been passed.  It would not be legitimate  to cut  down the width and amplitude of the first part  of  the section  by reference to the second part.  It is clear  from the plain and unambiguous language of the first part of  the section  that  the  legislature  intended  to  exclude   the applicability  of all provisions contained in the Act to  an adopting  made  before the commencement of the Act  and  not merely  the applicability of those provisions  which  affect the validity and effect of such adoption.  If such had  been the  intention  of  the  legislature,  it  would  have  used appropriate language, such as "nothing contained in this Act shall  affect  the validity and effect of  any  adoption  ", instead  of enacting a saving provision employing  wide  and all  embracing language not limited merely to validity and effect.   Therefore, merely because validity and effect  are specifically dealt with in the second part 38 of the section it cannot detract from the generality of  the saving provision enacted in the first part.  The second part of the section has no restrictive effect on the first  part. I must, therefore, proceed to consider the true meaning  and effect  of the first part of the section uninhibited by  the provision in the second part.  The first part of the section says  that  nothing  contained in the  Act  and  that  would include  section 15-shall affect any adoption made prior  to the  commencement of the Act.  But what is the  meaning  and connotation of the word "affect’.  When section 15  provides that  an adoption once made shall not be cancelled, does  it ’affect’  an adoption already made which is subject  to  the incident  of revocability ?  Now, even if the word  ’affect’ were to be interpreted to mean alter or ’influence’ or ’have impact  on’  there  can be no doubt that  section  15  would ’affect’ such adoption because it would destroy one incident of  such adoption, namely, its revocability.  But I  do  not

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think  that  in the context in which the  word  ’affect’  is used,  it- means ’alter’ or ’influence’ or ’have impact  on’ The  word  ’-affect’  is a word of wide import  and  in  the context  in  which it occurs it must be  construed  to  mean "touch"  or  "relate  to" or "    concern."  The legislative intent,  as  manifest  in the first  part  of  the  section, clearly is that nothing contained in the Act shall touch  or apply to an adoption made prior to- the commencement of the- Act.   I  am fortified in giving this meaning  to  the  word ’affect’  by the decision of the High Court of Australia  in Shanks  v.  Shanks.  (1) There the question  was  whether  a decree  dismissing a petition for dissolution of a  marriage could  be said to be judgment which ’affects’ the status  of any  person under the laws relating to marriage  or  divorce within the meaning of section 35(1) (a) (3) of the Judiciary Act,  1903.   The  ,argument was that  a  decree  graduating dissolution  of marriage would be a judgment  effecting  the status  of  the  parties  to  the  marriage,  but  a  decree dismissing a petition for dissolution of marriage would  not be,  as it would leave the status of the parties  untouched. This  argument was rejected by the High Court of  Australia. Mr. Justice MeTierman gave the following meaning of the word ’affects’ as used in section 35(1) (a) (3) :               "If  the word "affects" in sec. 35  means,  as               the  respondents contend, alters,  the  appeal               against the decree dismissing the  appellant’s               petition would not lie as of right, because it               is clear that the decree does not alter theappellant ’s               status   :   See   Needham   v.    Bremner."(2               )...........In     its   ordinary    usage               "affects" is a synonym for touching, orrelating               to, or concerning.  In my opinion the word has               that meaning in the context of sec. 35.   This               section should be construed as conferring  the               most ample jurisdiction that the fair  meaning               of  the  words  will allow.   In  a  suit  for               divorce the status of the parties is  involved                             and  the decree, whether it allows  or   refuses               the  petition,  touches  the  status  of   the               parties.   In the case of C. v. M. (3 )it  was               said  in terms that the decree the subject  of               that appeal involved a question of (1)  65 C.L.R. 334. (2)  (1866) L.R. 1 C.P. 583, at p. 585. (3) (1885) 10 Sup.   Cal. 171 at p. 177. 39 .lm15 the  appellant’s status.  If the word "affects" is  read  as meaning relating to or touching, then sec. 35 gives a  right of  appeal  both  from  a decree of  divorce  and  a  decree refusing  a divorce-.  In Bleeze v. Fopp(1) the judgment  of the  Supreme Court was in effect that the respondent  should not  be made bankrupt.  Griffith C.J. said :  "The  Judgment affects the status of the respondent within sec. 35." The  same meaning must be given to the word ’affect, in  the present  case.  So construed, it is clear that what  section 30  enacts  is that nothing contained in  the  Act-and  that includes  section  15-shall touch or concern  or,  in  other words, apply to an adoption made prior to the Act.   Section 15,  therefore,  is  confined  in  its  application  to  an, adoption made subsequent to the Act and it does not place an embargo, on cancellation so far as an adoption prior to  the Act is concerned.  If, therefore, such an adoption could  be

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cancelled  by the adopter prior to the commencement  of  the Act, the right of the adopter to cancel it is not taken away by section 15. Then, does section 4 have such an effect.  The only relevant part of section 4 to which I need refer is clause (a)  which is in the following terms : "Save as otherwise expressly provided in this Act,               (a)   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 this Act shall cease to  have               effect  with respect to any matter  for  Which               provision is made in this Act." The intendment and effect of section 4(a) is to abrogate the existing  law or custom in so far as it is replaced by  the law enacted in the statute. if there is a provision made  in the statute which operates on the same area as the  existing law or custom, the statutory provision must prevail and  the existing  law or custom must give way : it must be taken  to be  superseded or, to use the language of section 4 (a),  it was  to cease to be in force, because then the matter  would be  governed  by  the statutory  provision  and  not-by  the existing  law  or custom.  If, therefore,  section  15  were applicable  to an adoption made prior to the Act,  it  would govern the ’matter’ of cancellation of such adoption and any existing law or custom providing to the contrary would cease to be in force and no longer apply.  But as discussed above, section 15, on its proper interpretation, applies only to an adoption  made  after  the commencement  of  the  Act, and therefore, so far as the matter relating to cancellation  of an  adoption made before the Act is concerned, any  existing law or custom making provision in that behalf cannot be said to  have  been abrogated by reason of  section  4(a).   Such existing law or custom would continue in force and apply so as  to govern the ’matter’ of cancellation of adoption  made before the commencement of the Act. (1)  (1911) 13 C.L.R. 324. 40 That  being  the  true legal position, let  us  see  how  it applies  in the present case.  Here there was, prior to  the commencement  of the Act, the custom of Goda-datta  adoption and  the Goda-datta adoption could, according to custom,  be cancelled  by the adopter at any time he liked.  The  custom of  Goda-datta  adoption  ceased  to  be  in  force  on  the commencement  of  the Act by virtue of  section  4(a)  since provision was made in various section of the Act laying down the conditions and requirements for making an adoption.  See section 5 to 1 1. No Goda-datta adoption could,  therefore, be  made  after  the commencement of the  Act  according  to custom  and  consequently no question  of  its  cancellation could  arise.   But  where a goda-datta  adoption  was  made before  the Act, the custom gave a right to the  adopter  to cancel  the adoption at his sweet will and this custom.  in so  far as it operated on Goda-datta adoption made prior  to the Act. did not cease to be in force under section 4(a)  as section  15 did not make provision in regard to ’matter’  of cancellation of such adoption.  It was, however,  contended on  behalf of the appellant that the custom  OIL  Goda-datta adoption  had two limbs, one relating to the making  of  the adoption and  its effect and the other providing  for  its revocability at the option of the adopter or the adoptee and a  question was posed : if the first limb is destroyed,  how can the second survive ? Both limbs of the custom, according to the appellant, must perish as soon as the custom came  to an  end  on  the commencement of the  Act.   This  argument,

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though  apparently attractive, is, in my opinion, not  sound and suffers from the fault of over simplification.  It is of course true that the custom of Goda datta adoption ceased to be  in force on the commencement of the Act and,  therefore, in so far as it concerned adoption to be made subsequent  to the  Act, the second limb of the custom came to an end  with the  first, because if no Goda-datta adoption could be  made after  the  commencement  of  the Act,  there  could  be  no question  of  its cancellation.  If the first  limb  of  the custom  was gone, there could be no Goda-datta  adoption  on which  the second limb could operate.  But where  under  the first  limb of the custom a Goda-datta adoption was  already made,  the  second  limb would not have to  depend  for  its survival  on the continuance of the first.  There  would  in such  a  case be a Goda-datta adoption on which  the  second limb  of  the custom could operate and in relation  to  such Goda-datta adoption. the second limb of the custom would be the law in force.  That could not be said to be abrogated by section 4(a), since neither section 15 nor any other section of  the Act made any provision in regard to the ’matter’  of cancellation  of  an adoption made prior to  the  Act.   The second limb of the custom relating to revocability of  Goda- datta  adoption,  therefore,  continued  in  force  in   its application- to Godadatta adoption made prior to the Act and the enactment of the Act did not have the effect of  putting an  end to it.  The Goda-datta adoption made before the  Act was,  therefore, revocable by the adopter at his sweet  will even after the commencement of the Act. I,  therefore, agree with my learned brother Untwalia,  J., that  the  appeal should be dismissed with no  order  as  to costs. 41 UNTAWALIA,  J.  In  this  appeal  filed  by  the   defendant appellant  on grant of a certificate of fitness by the  High Court   of  Gujarat  under  Article  133  (1)  (c)  of   the Constitution  of India as it stood before the  Constitution (Thirtieth  Amendment)  Act,  1972  one  of  the   important questions concerns the interpretation of Sections 4, 15  and 30  of  the  Hindu  Adoptions  and  Maintenance  Act,  1956- hereinafter  called  the Act.  The two parties to  the  suit giving  rise  to  this appeal are the  descendants  of  Shri Vallabhacharya  Maharaja,  the  original  founder  of  Suddh Adauit Pushti Marg.  He flourished about 500 years ago.  The family of the descendants aforesaid is known as  Vallabhkul. Many of such descendants are working as Acharyas of  various temples  and shrines in Gujarat and other places.  They  are generally  known as Goswamis, Acharyas or Maharajas.   Their Offices are known as "Gadis". Maharaj  Purshotamlalji  Raghunathlalji was the  Maharaj  of Junagadh Haveli of Gujarat.  He died on 11th September, 1955 leaving  behind a widow and four daughters.  He had no  son. The plaintiff respondent was the widow and she was the  only heir  of the deceased Maharaj and was called Vahuji  Maharaj Shri Chandraprabha.  According to the case of the respondent she  had engaged Daniraiji Urajlalji the appellant  in  this case  for doing the puja of the God which he was  performing as  the representative of the respondent.  ’Tilak’  ceremony was done in order to inform the Vaishnav devotees about  the appointment    of    the   appellant   for    doing    puja. Murlidharlalji-the  older  brother of  the appellant,  was pressing the respondent to take him in adoption.  But  since the  appellant was an orphan-his parents being dead  earlier he  could not be adopted.  No ceremony of giving and  taking had  taken place.  No other ceremony as required  under  the Hindu   Law  for  a  valid  adoption  was  performed.    The

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respondent  filed  the  suit  on the  14th  of  April,  1958 claiming  relief of declaration that the appellant  was  not the legally adopted son of deceased Purshotamlalji.  About 3 months after the institution of the suit the respondent made a written declaration on the 17th of July, 1958 stating that the adoption in question had never taken place and that even if,  it  was  believed  that it had  taken  place  it  stood revoked.   The declaration aforesaid, which  was  registered also  with  the Registrar of Documents, in Ext. 292  in  the case.   The  appellant and his guardian were made  aware  of this declaration before their written statement was filed on the 15th August, 1958. The  appellant’s case has been that the  respondent  adopted him  Is  per their family custom on the  18th  March,  1956. Such ceremonies as were required to be performed as per  the custom  of  the  family were gone  through.   The  customary adoption  in the family is known either as "Goda  Datta"  or "Goda".   The appellant had also challenged in  his  written statement the respondent’s right to revoke the said adoption because  according  to the family custom, adoption  of  Goda Datta once made could not be revoked. Although  in their statement and in the particulars  of  the custom  which  were supplied on behalf of the  appellant  on being asked to do 42 so,  only one type of customary adoption was  indicated)  in evidence  attempt  was made on his behalf to show  that  the custom recognized two types of adoptions-one known as  "Goda Datta" and the other as "Samanya Goda". Voluminous oral and documentary evidence was adduced by  the parties at the trial.  The Trial Judge decreed the suit  and held as under               (1)   That the appellant was adopted according               to the custom of the family.               (2)   That   there  was  only  one   type   of               customary  adoption and the same was known  as               "Goda Datta" or shortly as "Goda".               (3)   That adoption of the type of Goda  Datta               was  revocable unilaterally by either  of  the               parties and that such  revocation   was   in  fact   made   by   the               respondent. The  Trial  Judge negatived the contention  put  forward  on behalf  of the appellant that the alleged revocation  having been  brought  about  during the pendency of  the  suit,  no relief could be given to the respondent on its basis. The  defendant  filed an appeal in the Gujarat  High  Court. The  plaintiff filed a cross-objection to challenge  certain findings  of the Trial Judge recorded against her  specially in  regard  to the factum of adoption.  But in view  of  the voluminous  and  unimpeachable  evidence in  the  case,  the matter  was not pursued in the High Court on behalf  of  the respondent.   Learned counsel for the appellant in the  High Court  urged six points in support of the appeal  enumerated in the judgment of the High Court as follows               (1)   "That  the defendant has  satisfactorily               proved          that  there are two  types  of               customs  in the family, namely,  "Goda  Datta"               and "Samanya Goda" and that the adoption which               is  made in accordance with "Goda Datta"  type                             of customs is irrevocable.               (2)   That  assuming  that there is  only  one               type of custom as contended by the  plaintiff,               the  plaintiff  has failed to prove  that  the               adoption  which  is  made by  that  custom  is

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             revocable  at  the instance of either  of  the               parties.               (3)   That   looking  to  the  deposition   of               defandant’s  witness  Lalan  Krishna  Shastri,               even  if  it is believed  that  the  customary               adoption  in question is revocable, it may  be               revoked  only on some reasonable  grounds  and               since  the  plaintiff  in this  case  has  not               revoked   this  adoption  on  any   reasonable               ground,  the  said revocation is  not  legally               operative.’               (4)   That at any rate, the declaration  found               at Exhibit 292 by which the revocation is said               to have been                43               made, does not legally revoke the adoption  in               as  much  as  it does not admit  the  fact  of               adoption of the defendant.               (5)   That on proper construction of  sections               4 and 15 of the Hindu adoption and Maintenance               Act  of  1956, the custom in question  was  no               longer  in  force on the day  of  the  alleged               revocation   and,  therefore,  revocation   in               accordance  with  that custom could  not  have               been legally made by the plaintiff.  According               to  Mr.  Nanavati, the adoption  validly  made               before the application of the said Act becomes               absolute  and  irrevocable  as  a  result   of               section 15 of the Act.               (6)That the prayer for declaration that the               defendant is not adopted cannot be granted  in               view  of the fact that the alleged  revocation               has been made by the plaintiff only after  the               institution of the suit." The  High  Court  has taken pains to discuss  and  scan  the points  urged  on  behalf of the appellant  before  it,  and answered all of them against him. Mr. V. S. Desai appearing on behalf of the appellant in this Court  finding  it  difficult to press and  pursue  all  the points  urged in the High Court gave up points 1 and  2  and faintly pressed point no. 6 but ultimately gave up that too. He, however, urged point nos. 3, 4, and 5 for our acceptance and  laid  great  stress on the 5th point which  is  a  pure question  of  law and a ticklish one.  Mr. S. T.  D.  Desai, learned counsel for the respondent submitted that there  was no  substance  in any of the points urged on behalf  of  the appellant  and the judgment of the High Court was fit to  be upheld in every respect. I, therefore, proceed to discuss the three questions falling for  determination in this appeal on the footing that  there has  been only one type of custom of adoption in  Vallabhkul known   as  Goda  Datta  and  the  custom   recognized   the revocability of such adoption.  According to the said custom the  adoption could be revoked and annulled at the  instance of either party, namely, the adoptor or the adoptee. The  contention put forward on behalf of the appellant  that revocation could be made only on some reasonable grounds and the  custom required it to be so is not sound.  The  edifice for  such  an  argument was built on the  statement  in  the evidence  of the defendant’s witness Lalan  Krishna  Shastri who  stated  that adoption could be  revoked  on  "Sapeksha" reasons.   The  witness  did not  explain  the  meaning  of, "Sapeksha".   In  my opinion in the context  it  meant  that adoption Could be revoked unilaterally on the sweet will  or volition  of  either  party.   Such  an  interpretation   is

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consistent  with the other pieces of, evidence in  the  case referred to in the judgment of the courts below.  No  reason was  necessary to be stated or proved to sustain  the  revo- cation. 44 The  4th point for the appellant has also no substance.   In the  deed  of  cancellation Ext. 292  the  respondent  first asserted that she had not taken the appellant in adoption on 15-3-1956 or at any time.  But if the statement that she had taken Shri Daniraiji-the appellant--in adoption was believed to be true, she was cancelling and annulling that  adoption. In  my opinion the High Court has rightly rejected  the  4th contention  put forward on behalf of the appellant as  being without force. Coming  to the 5th and the only point of importance  in  the case  I  find  that  the  High  Court  has  over-ruled  this contention on two grounds-(1) "neither section 4 nor section 15  of  the Act is retrospective in its  operation  and,  if these sections are construed in their proper perspective, it would  appear that they refer to these adoptions which  have come  into existence after the application of the Act."  and (2) that the right of revocation of a Goda Datta adoption is one  of its effects and is saved by section 30 of  the  Act. In  my opinion the High Court is not right in deciding  this point  against the appellant on the second ground nor is  it quite  accurate  in the statement of law with  reference  to section 4 and 15 of the Act. 1, however, uphold the decision of  the  High  Court in this regard too  but  for  different reasons. Section  30 is a saving clause in the Act and says  "Nothing contained in this Act shall affect any adoption made  before the commencement of this Act, and the validity and effect of any such adoption shall be determined as if this Act had not been  passed."  The  second  part  of  the  section  merely. clarifies  what  is  embodied  in  the  first  ’Part.    The provisions  of the Act are not to affect any  adoption  made before its commencement.  That is to say the validity of the adoption made before the commencement of the Act as also its effect  will  have  to  be  examined  and  determined   with reference to the law or the custom as it stood prior to  the coming into force of the Act and not in accordance with  it. The  expression  "affect  any  adoption"  necessarily  means affect an adoption as to its "validity and effect."  Neither of  the expressions takes within its sweep any of the  other incidents  or  characteristics of the law or the  custom  of adoption under which it was made.  It is to be noticed  that almost  the  entire field in relation to  any  adoption  was covered in its validity and effect.  Yet something  remained outside  it.  The custom of revocability of adoption at  the instance of either party in the Goda Datta form was one such matter.  Under the Hindu Law even as it stood before  coming into force of the Act "A valid adoption once made cannot  be cancelled  by  the  adoptive father  or  the  other  parties thereto, nor can the adopted son renounce his status as such and return to his family of birth" vide section 493 at  page 556  of Mulla’s Hindu Law (Fourteenth  Edition).   Departure from  this general law was permissible in very rare type  of customs--Goda  Datta  being  one  such.   The  incident   or characteristic of this custom which entitled either party to revoke the adoption was not a matter concerning the validity and the effect of adoption. Several  judgments  of courts were produced as  evidence  to prove  the custom of Goda Datta, its effect  and  incidents. One such judgment 45

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was Ext. 277 dt., 16th October, 1930 of Kania, J as he  then was  in  suit no. 2019 of 1923.  Dealing with  one  of  the points  which  arose in the suit, the  learned  Judge  said. "The   evidence  of  the  plaintiff  and  Laxmishankar,   an Upadhyaya  (a  priest  Who directs the  performance  of  all religious ceremonies), proves the following principal points of difference between the two adoptions :-In a Godh adoption there  was  no physical giving or taking of the boy  and  no religious  ceremonies  were necessary.  An orphan  could  be taken   in   adoption  and  similarly  if  the   last   male representative  of  a  Gadi and his  widow  were  dead,  the trustees managing the Gadi could take a person in  adoption. Again  this  adoption could be cancelled at  the  option  of either the adopted son or the adoptive parents, and that  so long   as  the  Godh-adoption  continued  the  adopted   boy performed  the  funeral  and  obsequial  ceremonies  of  the adoptive  parents only.  The person taken  in  Godh-adoption did  not  lose  his rights in the family of  his  birth  and continued to perform the funeral And obsequial ceremonies of his  natural  parents and relations.   Moreover  the  person taken in Godh-adoption in one family could be further  taken in  a  Godh-adoption  by  an  altogether  different   family unconnected  with the first and instances of this kind  were mentioned  by Laxmishankar in his evidence (See ex.  3).   I accept  the evidence of the plaintiff and  Laxmishankar  on these points.  Bearing these fundamental differences in mind it  is clear that such a Godhadoption is a pure creature  of custom and not of law.  As a Godhadoption could be cancelled at  the option of either party the position of  the  adopted person was nothing higher than that of a dignified  employee or licensee engaged to perform the rites and enjoy the  pri- villages for the time he continued to be such a son.   Such an  adoption  had absolutely no  religious  significance  or merit  and  fell  far short of  even  an  ordinary  contract between  the  parties.  By reason of such  an  adoption  the adopted  person did not lose any right and the fact that  be could  be adopted in two or three families unconnected  with each  other  showed that it was only a  secular  arrangement without any religious efficacy attached thereto." Even  if Section 15 of the Act which prohibits  cancellation of  adoption once validly made were to apply to an  adoption made  prior  to coming into force of the Act, it  would  not affect  that adoption, its validity or effect.   Instead  of affecting  the  adoption  it  would  not  permit  it  to  be affected.  In my judgment, therefore, the main ratio of  the decision of the High Court in this regard based upon section 30 of the Act is not correct. Section 4 of the Act reads as follows      Save as otherwise expressly provided in this Act,               (a)   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 this Act shall cease to  have               effect  with respect to any matter  for  which               provision is made in this Act;               46               (b)   any  other  law  in  force   immediately               before  the  commencement of  this  Act  shall               cease  to apply to Hindus in so far as  it  is               inconsistent   with  any  of  the   provisions               contained in this Act." We are concerned with clause (a).  In the Act, provision has been  made  in  Chapter II, sections 5 to 17  in  regard  to various matters in relation to adoption.  Section 5(1)  says "No  adoption shall be made after the commencement  of  this

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Act  by  or  to  a  Hindu  except  in  accordance  with  the provisions contained in this Chapter, and any adoption  made in  contravention  of the said provisions shall.  be  void." Section  6  prescribes  requisites  of  a  valid   adoption. Section  7  and 8 provide for capacity of a male  or  female Hindu  to  take in adoption.  Sections 9 and  10  deal  with persons  capable of giving in adoption and persons who  may be adopted.  The other conditions for a valid ,adoption  are enumerated  in  section  11.  Section 12  provides  for  the effects  of  adoption.  Section 15 reads as  follows  :  "No adoption which has been validly made can be cancelled by the adoptive  father or mother or any other person, nor can  the adopted child renounce his ,or her status as such and return to the family of his or her birth." Any custom or usage as part of the Hindu Law in force  prior to the commencement of the Act has ceased to have effect in regard  to any matter for which ’provision has been made  in Chapter 1 1, except what has been expressly provided in  the Act,  such as, clauses (iii) and (iv) of section  10.   The custom of Goda Datta no longer exists.  No adoption could be made in the, Goda Datta form after coming into force of  the Act and hence there would be no question of its  revocation. Section 4 is clearly prospective and not retrospective.   If section  15 prohibits cancellation of adoption validly  made even  prior  to  the ,commencement of the Act,  then  it  is manifest that section 4 finishes the custom of  cancellation after  the  commencement  of  the  Act,  by  a   prospective operation and not by any retroactive action.  If the cancel- lation would have been made before coming into force of  the Act, neither section 4 nor section 15 had any  retrospective operation   to   annul  such  cancellation.   The   act   of cancellation  in this case coming into existence  after  the commencement  of the Act, the whole and sole question  which falls  for determination is whether the cancellation of  the adoption of the appellant by the respondent by Ext. 292  was in  contravention of section 15 of the Act.  I fit  was  so, the  cancellation  was  invalid and could not  be  saved  by section 30.  If not, the cancellation was good and operative on its own force and not as being saved by section 30. The  difficulty in interpreting the language of  section  15 arises be-cause of the fact that it merely says "No adoption which has been validly made can be cancelled........... The Legislature,  if I may say so, has omitted to use some  more words  in the section to express its intention clearly.   It says neither "adoption which has been validly made after the commencement  of  the  Act" nor  "adoption  which  has  been validly made either before or after the commencement of  the Act."  In such a situation it becomes the duty of the  court to supply the gap and read the intention of the  Legislature in the context of the 47 other  provisions  contained  in the  Act.   It  would  bear repetition to say that the law contained in the 15th section of  the Act was by and large the- law prevalent  before  its commencement.   Exceptions were very rare as in the case  of Goda Datta.  Did the Legislature intend to finish a part  of that custom by providing in the 15th section against cancel- lation of the adoption ? Or, did it intend to say that  only the adoption which has been validly made in accordance  with the provisions of the Act could not be cancelled ? In my considered judgment section 15 applies to an  adoption which  hays  been  validly  made-  in  accordance  with  the provisions contained in Chapter 11 of the Act and after  its commencement.   It  does not do away with the  incident  and characteristic of revocability of the custom of Goda  Datta.

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Whole  of Chapter 11 deals with the regulation  of  adoption made  after  the commencement of the Act.   The  effects  of adoption  provided in the 12th section are  undoubtedly  the effects  of  adoption  made  in  accordance  with  the  Act. Section  13  says that " an adoption does  not  deprive  the adoptive father or mother of the power to dispose of his  or her  property by transfer inter vivos or by will."  It  does induce some change in the Hindu Law as it existed before the commencement,of  the  Act, but obviously in  respect  of  an adoption made thereafter.  The presumption as to  registered documents  relating to adoption provided for in  section  16 does  relate to a registered document recording an  adoption made after the commencement of the Act.  In the context  and the set up of the 15th section of the Act it is difficult to enlarge  its  scope and permit it to  embrace  any  adoption which  has been validly made before the commencement of  the Act.   In my view the Legislature did not intend  to  change the  incident  or characteristic of a Goda  Datta  adoption, which  made the position of the adopted person in the  words of  Kania,  J  "nothing  higher than  that  of  a  dignified employee, or licensee engaged to perform the rites and enjoy the privileges for the time he continued to be such a  son." It may be that the Legislature inadvertently left the custom of revocability of Goda Datta adoption untouched by the 15th section  of  the  Act.  In either view of the  matter  I  am constrained to hold that the cancellation of adoption of the appellant made by the respondent by the registered  document dated  17th July, 58 Ext. 292 in accordance with the  custom of Goda Datta under which the adoption had been made was not rendered  illegal or invalid for the alleged  infraction  of section  15 of the Act.  There was no violation of  the  law contained in that section. For the reasons stated above I would dismiss the appeal  and confirm the decree of the High Court.  No order as to costs.                            ORDER In accordance with the Judgments of the majority, the appeal is dismissed with no order as to costs. The order appointing Receiver is discharged. V.P.S. 48