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TMI Blog2017 (11) TMI 1868X X X X Extracts X X X X X X X X Extracts X X X X ..... in our country brings along various customs which defines what India is. Law is not oblivious of this fact and sometimes allows society to be governed by customs within the foundation of law. It is well known that a custom commands legitimacy not by an authority of law formed by the State rather from the public acceptance and acknowledgment. Custom evolves by conduct, and it is therefore a mistake to measure its validity solely by the element of express sanction accorded by courts of law. The characteristic of the great majority of customs is that they are essentially non-litigious in origin. They arise not from any conflict of rights adjusted, but from practices prompted by the convenience of society. A judicial decision recognizing a custom may be relevant, but these are not indispensable for its establishment. When a custom is to be proved by judicial notice, the relevant test would be to see if the custom has been acted upon by a court of superior or coordinate jurisdiction in the same jurisdiction to the extent that justifies the court, which is asked to apply it, in assuming that the persons or the class of persons concerned in that area look upon the same as binding in r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... das his wife Sundarabai who is the original Plaintiff in the suit was also taken as a partner. When the other partners failed to give her share in the business, she issued notice to all the partners to give accounts of 5th Defendant partnership firm and also to pay the amount of her share. 3. In the year 1984, wife and children of Chunilal i.e. brother of Govardhandas issued notice, to Sundarabai and the Appellant, stating that Appellant is the adopted son of late Govardhandas as such he cannot claim any share in his natural family and further sought for partition of the joint family properties, for that Sundarabai issued a reply notice denying the factum of adoption and thereafter filed the present suit i.e. Special Civil Suit No. 395/1987 for dissolution and accounts of Defendant No. 5 partnership firm and also sought for a declaration that the Appellant is not the adopted son of late Govardhandas. During the pendency of the suit, Sundarabai died and her daughters were brought on record. 4. The trial court, after a full-fledged trial, has partly decreed the suit declaring that the deceased Sundarabai, original Plaintiff had 1/5th share in the assets and liabilit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... That there was no evidence on record other than the oral testimony of one Chaturbuj Sharma that he performed the adoption ceremony as a priest. e. That Appellant himself has contradicted the oral testimony of the alleged priest Chaturbuj Sharma concerning the ceremony of taking the Appellant into the lap of Govardhandas. f. That the letters exhibited to show the change of name does not cogently establish the adoption. g. From the date of adoption up to filing the suit, the Appellant continued to use his earlier name without adopting the name of the adopted father. h. The Income tax returns of the Appellant after 1973 indicates that he continued to use his earlier name. i. No explanation forthcoming from the Appellant concerning the above suspicious circumstances. j. Moreover, the adopted mother herself is contesting the factum of adoption. 6. Learned Counsel appearing on behalf of the Appellant has argued that- a. The custom of married men getting adopted is prevalent in Jain community, which has been proved by the priest who performed the adoption ceremony. b. The custom of adoption of married men was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No person shall be capable of being taken in adoption unless the following conditions are fulfilled, namely- ... (iii) he or she has not been married, unless there is a custom or usage applicable to the parties which permits persons who are married being taken in adoption; (iv) he or she has not completed the age of fifteen years, unless there is a custom or usage applicable to the parties which permits persons who have completed the age of fifteen years being taken in adoption. 11. From the aforesaid provisions, it is clear that a person cannot be adopted if he or she is a married person, unless there is a custom or usage, as defined Under Section 3(a), applicable to the parties which permits persons who are married being taken in adoption. 12. India has a strong tradition of respect for difference and diversity which is reflected under the Hindu family laws as it is applicable to diverse communities living from the southern tip to northern mountains, from western plains to eastern hills. Diversity in our country brings along various customs which defines what India is. Law is not oblivious of this fact and sometimes allows society to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the alleged custom has the characteristics of a genuine custom viz., that it is accepted willfully as having force of law, and is not a mere practice more or less common. The acts required for the establishment of customary law ought to be plural, uniform and constant. 14. Custom evolves by conduct, and it is therefore a mistake to measure its validity solely by the element of express sanction accorded by courts of law. The characteristic of the great majority of customs is that they are essentially non-litigious in origin. They arise not from any conflict of rights adjusted, but from practices prompted by the convenience of society. A judicial decision recognizing a custom may be relevant, but these are not indispensable for its establishment. When a custom is to be proved by judicial notice, the relevant test would be to see if the custom has been acted upon by a court of superior or coordinate jurisdiction in the same jurisdiction to the extent that justifies the court, which is asked to apply it, in assuming that the persons or the class of persons concerned in that area look upon the same as binding in relation to circumstances similar to those under consideration. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dduced before the court. Moreover, there is no dispute with regard to the fact that the Appellant did not plead in his written statement about existence of any custom as such. Parties to a suit are always governed by their pleadings. Any amount of evidence or proof adduced without there being proper pleading is of no consequence and will not come to the rescue of the parties. 19. At this juncture it would be necessary to observe the law laid down by this Court in numerous cases that the burden of proving adoption is a heavy one and if there is no documentary evidence in support of adoption, the Court should be very cautious in relying upon oral evidence. This Court held so in Kishori Lal v. Mst. Chaltibai AIR 1959 SC 504, We can do no better than to quote the relevant passage from the above judgment which reads as under: As an adoption results in changing the course of succession, depriving wives and daughters of their rights and transferring properties to comparative strangers or more remote relations it is necessary that the evidence to support it should be such that it is free from all suspicion of fraud and so consistent and probable as to leave no occasion fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... living with Govardhandas at his residence. As per his evidence, during the marriage of Asha, Govardhandas decided to adopt the Appellant and the ceremony was held on 08.07.1973, one day before the marriage. The adoption ceremony was held at the residence of Govardhandas. As Appellant and Govardhandas were from the Jain community, there was no bar in their community either for adoption of a married son or concerning the age of the adopted son. It is stated that there is no custom in their community to reduce the adoption in writing. One Chaturbuj Maharaj was the priest who performed the said ceremony in the presence of his biological mother, sisters and other relatives. His biological mother gave Appellant in adoption to Govardhandas and Sundarabai i.e. the original Plaintiff. Govardhandas and Sundarabai performed the pooja of the said ceremony. Said ceremony was held with the desire and consent of Sundarabai and Govardhandas. After the Appellant was given in adoption to Govardhandas, Appellant was instructed by the priest to sit on the lap of Govardhandas and Sundarabai. After the ceremony, lunch was served to all persons, who had attended the ceremony. It is to be noted that invit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ense witness No. 3, stated that he knew Govardhandas for many years. He recollected that many years ago Govardhandas had discussed the matter of adopting the Appellant with him. He was present during the ceremony. He could not recollect whether invitation cards were printed for the adoption ceremony. According to his statement, the adoption ceremony was performed at the residence of the Govardhandas wherein 200 to 300 persons attended that function. He further stated that no religious ceremony relating to the marriage had taken place prior to the day of marriage. It is to be noted that Mohanlal and Ajith have deposed on the same lines in favour of the Appellant. 24. The evidence as discussed above makes it clear that there are lot of contradictions in the evidence of witnesses on all material aspects of adoption. A thorough glance at the entire evidence makes it clear that the Appellant who asserts the fact that he is adopted by late Govardhandas failed to plead and prove the factum of adoption. All the circumstances pleaded by the Appellant are not properly explained by adducing cogent evidence to the satisfaction of the Court. The trial court placed burden on the Plainti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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