Page 1

REPORTABLE

IN THE SUPREMECOURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 2058 OF 2003

Laxmibai (Dead) thr. Lrs. & Anr.            … Appellants

Versus

Bhagwantbuva (Dead) thr. Lrs. & Ors. … Respondents

J U D G M E N T

Dr. B.S. CHAUHAN, J.

1. This appeal has been preferred against the impugned judgment  

and order dated 9.2.2001, passed by the High Court of Judicature at  

Bombay (Aurangabad Bench) in Second Appeal No. 906 of 1980, by  

way of which the High Court has affirmed the judgment and order of  

the First  Appellate Court in Regular Civil  Appeal  No. 92 of 1977,  

dismissing Civil Suit No. 52 of 1971, which stood allowed by the trial  

court vide judgment and decree dated 15.3.1977.

Page 2

2. The facts and circumstances giving rise to this appeal are :

A. One Narayanbuva Gosavi,  a  descendant  of  Shri  Sant  Eknath  

Maharaj was vested with the exclusive right to carry the Palki and  

Padukas of Sri Sant Eknath Maharaj from Paithan to Pandharpur at  

the time of Ashadi Ekadashi.   He died in 1951, leaving behind his  

widow,  namely,  Smt.  Laxmibai.  Krishnabuva.  Brother  of  

Narayanbuva had pre-deceased him leaving behind his widow, Smt.  

Gopikabai.

B. After the death of Narayanbuva, the appellant Smt. Laxmibai,  

was vested with the exclusive right to carry the Palki and Padukas.  

The respondents herein, who are also descendants of Sri Sant Eknath  

Maharaj, served  notice dated 6.5.1971 upon Shri  Vasant Bhagwant  

Pandav, stating that he must not give his son Raghunath, aged 8 years,  

in adoption to Smt. Laxmibai.  

C. On 10.5.1971, some of the respondents herein, filed Civil Suit  

No. 47 of 1971 against Shri Vasant Bhagwant Pandav, Smt. Laxmibai  

and Smt. Gopikabai, restraining them from effectuating the  adoption  

of Raghunath. The aforementioned suit was withdrawn subsequently,  

in September 1974.  

2

Page 3

It  was  during  the  pendency  of  the  said  suit  filed  by  the  

respondents,  that  on  11.5.1971,  Raghunath  was  adopted  by  Smt.  

Laxmibai  after  the  performance  of  all  requisite  ceremonies  which  

were conducted in the presence of a huge crowd, wherein the process  

of giving and taking of the child by the parents of Raghunath and by  

Smt. Laxmibai respectively, was held. The ceremony was performed  

by a priest, and several photographs were also taken on this occasion.  

On the same day, an adoption deed was executed and registered in this  

respect, and the said deed was duly signed by seven witnesses. Owing  

to the fact that the respondents had tried to create some hindrance in  

the performance of  the duties of the appellants, in relation to carrying  

the Palki and Padukas, Smt. Laxmibai and Smt. Gopikabai filed Suit  

No. 52 of 1971, against the respondents seeking a decree of perpetual  

injunction  preventing  them  from  causing  any  obstruction  or  

interference in the exercise of their exclusive rights, on 14.6.1971.  

D. The suit was contested by the respondents and a large number  

of issues were framed.  The trial court decreed the suit, holding that  

the  adoption  of  Raghunath  by  Smt.  Laxmibai  was  valid;  that  the  

adoption deed was a legal document which could in fact,  be relied  

upon; that the ceremony of giving and taking of the child and that  

3

Page 4

performance of  all  other  religious  ceremonies  was  conducted ;  and  

also that photographs taken at the time of adoption could be relied  

upon. The said adopted child Raghunath, inherited all the  property of  

Smt.  Laxmibai  when  she  died  before  the  trial  of  the  suit  even  

commenced. The inheritance was held to be valid, as it was held that  

there was no custom of adopting of a male child only from within the  

said  family and,  consequently,  the adoption of  Raghunath by Smt.  

Laxmibai from outside, was upheld.  

E. Aggrieved, the respondents preferred Civil  Appeal No. 92 of  

1977 and for certain reliefs, the appellants also filed a cross appeal.  

Various  points  were considered by the First  Appellate  Court,  after  

which, the decree of the Civil Court was reversed vide judgment and  

decree dated 1.8.1980, by which it was held that the respondents had  

proved,  that  there  did  in  fact  exist  a  custom which prohibited  the  

taking of a male child in adoption from outside. The adoption itself  

was  suspicious  as  independent  witnesses  were  not  examined.  The  

witnesses  who proved the  validity  of  the  adoption were  interested  

witnesses, and the adoption deed was also suspicious.  

4

Page 5

F. Aggrieved,  the  appellants  preferred  a  Second Appeal,  which  

was dismissed by the High Court vide impugned judgment concurring  

with the First Appellate Court.   

Hence, this appeal.  

3. Shri  Aarohi  Bhalla,  learned  counsel  appearing  for  the  

appellants, has submitted that there is a presumption of validity with  

respect to the registered adoption deed under Section 16 of  Hindu  

Adoptions and Maintenance Act, 1956 (hereinafter referred to as ‘the  

Act  1956’).   Therefore,  the appellate  courts  committed an error  in  

doubting the validity of the registered adoption deed. The burden of  

rebutting  the  aforementioned  presumption  which  was  on  the  

respondents,  was not discharged effectively, as they examined only  

two witnesses, Narharibuva (DW.1) and Somnath (DW.2), and neither  

of them made any reference to the said deed at all. Therefore, in the  

absence of any attempt on the part of the respondents to rebut the said  

presumption,  holding that  the adoption deed was suspicious,  is  not  

sustainable.  The appellate courts have categorically held, that in the  

past 375 years, a total of four adoptions have taken place, and  that it  

was only in each of  these cases that  a male child from within the  

family was adopted,  and not one from outside.  Thus,  the appellate  

5

Page 6

courts committed an error in holding that there was a custom to this  

effect. In the absence of any evidence, a statement alleging that either  

one of the said adoptive parents wanted to take a child in adoption  

from outside, and that the same was attempted, must not be accepted.  

Moreover,  the  occurance  of  only  four  instances,  over  a  period  of  

almost four centuries, is not sufficient to establish the existence of a  

custom. The non-examination of Smt. Laxmibai during the trial of the  

suit on account of her death, prior to the commencement of the trial,  

cannot be taken as a circumstance against the appellants.  Thus, the  

appellate  courts  have  erred  in  taking such a   perverse  view.   The  

photographer present at the adoption ceremony, who was examined by  

the appellants before the trial court, was not asked any questions in  

the cross-examination by the respondents, with respect to any doubts  

they  had  regarding the  genuineness  of  either  the  negatives,  or  the  

photographs of the ceremony. In the absence of resorting to such a  

course by the respondents, the appellate courts could not have drawn  

any adverse inference as regards his deposition, particularly when the  

photographer  had  proved  the  existence  and  validity  of  both  the  

negatives, and the photographs.  Thus, the judgments and decrees of  

6

Page 7

the appellate courts are liable to be set aside, and the judgment of the  

trial court deserves to be restored.  

4. Per  contra,  Shri  Aniruddha  P.  Mayee  and  Shri  Devansh  A.  

Mohta, learned counsel appearing for the respondents, have opposed  

the appeal, contending that the first appellate court has the right to re-

appreciate all material on record, after which it has rightly reached a  

conclusion as regards the suspicious nature of the adoption deed and  

adoption ceremonies, and has also rightly concluded, that since  over a  

period of 375 years only four adoptions have taken place, and as in  

each case,  a  male  child  was adopted only from within the family,  

there certainly existed a custom which did not permit the adoption of a  

male child from outside the family. Such findings do not warrant any  

interference by this court.  The appeal  lacks merit,  and is therefore,  

liable to be dismissed.  

5. We  have  considered  the  rival  submissions  made  by  learned  

counsel for the parties, and perused the record.      

6. Section 3(a) of the Act 1956 defines 'custom' as follows:  

“The expressions, 'custom' and 'usage' signify any   rule  which,  having  been  continuously  and   

7

Page 8

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”.

7. Custom is an established practice at variance with the general  

law.  A custom varying general law may be a general, local, tribal or  

family custom.  A general custom includes a custom common to any  

considerable  class  of  persons.  A  custom  which  is  applicable  to  a  

locality, tribe, sect or a family is called a special custom.

Custom is  a  rule,  which in  a  particular  family,  a  particular  

class, community, or in a particular district, has owing to prolonged  

use, obtained the force of law. Custom has the effect of modifying  

general personal law, but it does not override statutory law, unless the  

custom is expressly saved by it.

Such custom must be ancient, uniform, certain, continuous and  

compulsory. No custom is valid if it is illegal, immoral, unreasonable  

or  opposed  to  public  policy.  He  who  relies  upon  custom  varying  

general law, must plead and prove it. Custom must be established by  

clear and unambiguous evidence.

8

Page 9

8. In  Dr.  Surajmani Stella Kujur v. Durga Charan Hansdah  

AIR 2001 SC 938, this Court held that custom, being in derogation of  

a general  rule,  is  required to be construed strictly.  A party relying  

upon  a  custom,  is  obliged  to  establish  it  by  way  of  clear  and  

unambiguous  evidence.  (Vide: Salekh  Chand  (Dead)  thr.  Lrs. v.  

Satya Gupta & Ors. (2008) 13  SCC 119).

9. A custom must be proved to be ancient, certain and reasonable.  

The evidence adduced on behalf of the party concerned must prove  

the  alleged  custom  and  the  proof  must  not  be  unsatisfactory  and  

conflicting.  A  custom cannot  be  extended  by  analogy  or  logical  

process and it also cannot be established by a priori method.  Nothing  

that the Courts can take judicial notice of needs to be proved. When  

a custom has been judicially recognised by the Court, it  passes into  

the  law  of  the  land  and  proof  of  it  becomes  unnecessary  under  

Section 57(1) of  the Evidence Act,  1872. Material customs must  be  

proved properly and satisfactorily, until the time that such custom has,  

by way of frequent proof in the Court become so notorious, that the  

Courts  take  judicial  notice  of  it.   (See  also:  Effuah  Amissah  v.  

Effuah  Krabah, AIR  1936  P.C.  147;  T.  Saraswati  Ammal   v.  

Jagadambal & Anr., AIR 1953 SC 201;  Ujagar Singh v. Mst. Jeo,  

9

Page 10

AIR 1959 SC 1041; and Siromani v. Hemkumar & Ors., AIR 1968  

SC 1299).

10. In Ramalakshmi  Ammal  v.  Sivanatha  Perumal  

Sethuraya, 14 Moo. Ind. App. 570, it was held: "It is essential that  

special  usage,  which  modifies  the  ordinary  law  of  succession  is  

ancient  and invariable;  and it  is  further  essential  that  such  special  

usage  is  established  to  be  so,  by  way  of  clear  and  unambiguous  

evidence.  It  is  only by means of such evidence, that courts can be  

assured of their existence, and it is also essential that they possess the  

conditions of antiquity and certainty on the basis of which alone, their  

legal title to recognition depends."

11. In Salekh Chand (supra), this Court held as under:   

“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.  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.”  

10

Page 11

12. In Bhimashya & Ors. v. Smt. Janabi @ Janawwa, (2006) 13  

SCC 627, this Court held:

“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……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.  

xx xx xx xx 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 limitation 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.”

(See also: Ram Kanya Bai & Anr. v. Jagdish & Ors. AIR 2011 SC  

3258).

13. Adoption is made to ensure spiritual benefit for a man after his  

death. The primary object  of  adoption was  to  gratify  ancestors'  by  

11

Page 12

means of annual offerings, and therefore it was considered necessary  

that  the offerer,  must  as  far  as  possible  be a reflection of  the real  

descendant, and must look as much like a real son as possible, and  

must  certainly  not  be  one,  who  could  never  have  been  a  son.  

Therefore, the present body of rules has evolved out of a phrase of  

Saunaka, which emphasizes that an adopted male, must be 'the  

reflection  of  a  son'.  (Vide:  Gherulal Parakh  v.  Mahadeodas  

Maiya, AIR 1959 SC 781; and V.T.S. Chandrashekhara Mudaliar  

(Dead thr. Lrs.) & Ors.   v. Kulandaivelu Mudaliar,  AIR 1963 SC  

185).

14. So far  as  the present  case is concerned,  the trial  court,  after  

appreciating the evidence on record regarding custom, came to the  

conclusion  that  the  evidence  led  by  the  defendants/respondents  

revealed,  that  over a period of 375 years,  there had arisen  only 4  

occasions,  when an adoption had taken place, and in each of these  

cases, a male child from the same family was adopted.  It therefore,  

did not establish the existence of any custom. Moreover, while serving  

notice  dated  6.5.1971  upon  Vasant  Bhagwant  Pandav, the  natural  

father of Raghunath, asking him not to give his son in adoption, the  

defendants/respondents  made  no  reference  to  the  existence  of  any  

12

Page 13

such special custom in their family.   The documents submitted on  

record also did not reveal the existence of any such custom prevailing  

in their family, and no reference was ever made in this regard by them  

in their pleadings.  The burden of proof with respect to this issue, was  

placed  upon  the  defendants/respondents,  which  they  failed  to  

discharge.   The First  Appellate  Court  rejected the argument  of  the  

appellants/plaintiffs,  to the effect  that  the issue  of  the existence  of  

such  custom,  was  neither  specifically  pleaded,  nor  proved,  by  the  

defendants/respondents.  After  considering  a  large  number  of  cases  

decided  by  various  courts,  the  High  Court  while  deciding  Second  

Appeal reached the conclusion that there was, in fact, a special custom  

that existed, which required the taking of a child from within the same  

family.  

15. We have appreciated the evidence  on record,  and are  of  the  

view that in the present case, only four adoptions have taken place  

over a time-span of 375 years and even though each time, a male child  

was taken from within the same family, the same  may merely have  

been done as a matter of convenience, and may additionally also be  

only to prevent the property of the family, from going to an outsider.  

There is nothing on record to establish that a child from outside  the  

13

Page 14

family could not have been adopted, or that any such attempt was ever  

made,  but  was  resisted  and  discarded.  The  respondents/defendants  

could not establish that a male child from outside the family could not  

be adopted. Thus, in view of the fact that the defendants/respondents  

have  never  made any  reference  with  respect  to  the  existence  of  a  

custom prohibiting the adoption of a child from outside the family,  

either  in  the  notice  served  by  them  on  6.5.1971  upon  Vasant  

Bhagwant Pandav, or in their written statement, the mere fact that it  

may only be for the sake of convenience, that a child was taken in  

adoption from within the same family on each of the four occasions  

over a period of 375 years, would not be sufficient to establish the  

existence of a custom in this regard, for the reason that custom cannot  

be proved by way of logic or analogy.  Thus we hold, that the finding  

recorded by the Appellate Courts on this issue, is not based on any  

evidence,  and that  the appellate  courts  have committed an error  in  

holding that the defendants/respondents have successfully proved the  

existence of such special  family custom. The appellate courts have  

failed to appreciate that a negative fact cannot  be proved by adducing  

positive evidence.  This is not a case where there have been adequate  

14

Page 15

judicial  pronouncements on the said issue previously,  of  which the  

court could have taken judicial notice.   

Special  customs;  which  prevail  in  a  family,  a  particular  

community etc.,  require strict proof and the defendants/respondents  

have failed to prove the same.    

Section 10 of the Act 1956, provides that a child upto the age of  

15 years can be taken in adoption.  Section 11 thereof prescribes, that  

in  the  event  that  a  female  adopts  a  male  child,  there  must  be  a  

difference of 21 years between the age of the female and that of the  

adoptive child. In the event that there is a registered adoption deed,  

there is a presumption of validity with respect to the said adoption.  If  

these tests are applied, the following situation emerges:  

The adopted child was 8 years of age at the time of adoption.  

Laxmibai, the adoptive mother, was 70 years of age at the relevant  

time and there is in fact, a registered adoption deed. Therefore, there  

is a presumption under Section 16 of the Act 1956, to the effect that  

the aforementioned adoption has been made in compliance with the  

provisions  of  the  Act,  1956  until  and unless such  presumption is  

disproved.   In  the  event  that  a  person  chooses  to  challenge  such  

adoption, the burden of proof with respect to rebutting the same, by  

15

Page 16

way of procedures accepted by law, is upon him.  In the instant case,  

the  defendants/respondents  never  made any attempt  whatsoever,  to  

rebut  the  presumption  under  Section  16  of  the  Act  1956.   The  

defendants have examined two witnesses, namely Narharibuva (DWI)  

and Somnath (DW2).  We have been taken through their depositions,  

in  which there  has  been no reference  whatsoever  to  the registered  

adoption  deed,  let  alone  any  attempt  of  rebuttal.  Therefore,  the  

defendants/respondents have failed to discharge the burden of rebuttal  

placed  upon  them,  with  respect  to  the  presumption  of  validity  of  

adoption under Section 16 of the Act 1956.   

16. Undoubtedly, the court while construing a document, is under  

an obligation to examine the true purport of the document and draw an  

inference  with  respect  to  the  actual  intention  of  the  parties.   The  

adoption deed was registered on 11.5.1971, and the same provided  

complete details stating that the adopted child was 8 years of age, and  

that the adoptive mother was an old lady of 70 years of age.  The  

adoptive  child  was  related  to  Smt.  Laxmibai.   Her  husband  had  

expired in 1951 and it had been his desire to adopt a son in order to  

perpetuate the family line and his name.  The natural  parents of the  

adoptive child had agreed to give their child in adoption,  and for the  

16

Page 17

purpose of the same, the requisite ceremony for a valid adoption was  

conducted,  wherein the natural parents, Vasant Bhagwant Pandav and  

Smt. Sushilabai Vasantrao Pandav, placed the adoptive child in the lap  

of the adoptive  mother, in the presence of a large number of persons,  

including  several  relatives.  A  religious  ceremony  called  “Dutta  

Homam”,  involving  vedic  rites  was  performed  by  a  pandit,  and  

photographs of the said occasion were also taken. Registration of the  

adoption  deed  was  done  on  the  same  day,  immediately  after  its  

execution, before the concerned Registrar.  The adoptive mother put  

her  thumb impression  on the  deed,  and it  was  also  signed  by  the  

natural parents of the child.  Additionally, the deed was signed by 7  

witnesses,  and all  the parties  have been identified.   The registered  

document  when  read  as  a  whole,  makes  it  evident  that  Vasant  

Bhagwant  Pandav  and  Smt.  Sushilabai,  the  natural  parents  of  the  

adoptive child, have signed the same as attesting witnesses, and not as  

executing parties.  

17. It has been laid down that it would defy common sense, if a  

party  to  a  deed  could  also  attest  the  same.   Thus,  a  party  to  an  

instrument cannot be a valid attesting witness to the said instrument,  

for the reason, that such party cannot attest its own signature. (Vide:  

17

Page 18

Kumar Harish Chandra Singh Deo & Anr. v. Bansidhar Mohanty  

& Ors., AIR 1965 SC 1738).

18. A document must be construed, taking into consideration the  

real  intention of  the  parties.  The substance,  and not  the form of  a  

document, must be seen in order to determine its real purport.  

19. In Delta  International  Limited v.  Shyam  Sundar  

Ganeriwalla & Anr.,  AIR 1999 SC 2607, this Court held that the  

intention of  the  parties  is  to  be  gathered  from the document  itself.  

Intention must primarily  be gathered from the meaning of the words  

used in the document, except where it is alleged and proved that the  

document itself is a camouflage. If the terms of the  document are not  

clear,  the surrounding circumstances and the conduct of the parties  

have also to be borne in mind for the purpose of ascertaining the real  

relationship between the parties. If a dispute arises between the very  

parties to the written instrument, then intention of the parties must be  

gathered from the document by reading the same as a whole.

20.     In Vodafone International Holdings B.V v. Union of India &  

Anr.,  (2012) 6 SCC 613, while dealing with a similar situation, this  

Court held:

18

Page 19

“The  Court  must  look  at  a  document  or  a  transaction  in  a  context  to  which  it  properly   belongs  to. While  obliging  the  court  to   accept documents or transactions, found to be   genuine, as such, it does not compel the court   to look  at a document or  a  transaction  in   blinkers, isolated from any context to which it   properly belongs.       If  it  can  be  seen  that  a document or  transaction was intended to have effect as part   of a nexus or series of transactions,  or as an   ingredient of a wider transaction intended as a   whole,  there  is  nothing  in  the  doctrine  to   prevent it being so regarded; to do so in not to  prefer  form  to  substance,  or  substance  to   form. It is the task of the court to ascertain the   legal nature of any transaction to which it  is   sought to attach a tax or a tax consequence and   if that emerges from a series or combination of   transactions intended to operate as such, it is   that  series  or  combination  which  may  be   regarded.”                              (emphasis added)

21. In S.T. Krishnappa v. Shivakumar & Ors.,  (2007) 10 SCC  

761, this Court observed that the "adoption deed" must be read as a  

whole and that on reading the same in such a way, the intention of the  

parties with respect to whether the adoptive father/mother wanted to  

make an adoption according to law and not merely, to appoint an heir,  

must be clearly established.

22. In Debi Prasad (dead) by L.Rs. v. Smt. Tribeni Devi, AIR  

1970 SC 1286, this Court held that the giving and receiving are  

19

Page 20

absolutely  necessary  to  the validity  of  an adoption.   All  that  is  

required is that the natural father be asked by the adoptive parent to  

give his son in adoption, and that the boy be handed over and taken  

for this purpose.

Furthermore, in Mst. Deu & Ors. v. Laxmi Narayan & Ors.,  

(1998) 8 SCC 701, the presumption of registered documents under  

Section 16 of  the Act  was discussed.   It  was held that  in view of  

Section  16,  wherever  any  document  registered  under  any  law  is  

produced before any court purporting to record an adoption made, and  

the same is signed by the persons mentioned therein, the court shall  

presume that the said adoption has been made in compliance with the  

provisions of the Act, until and unless such presumption is disproved.  

It was further held, that in view of Section 16 it is open for a party to  

attempt  to  disprove the  deed of  adoption by initiating  independent  

proceedings.     

23. Mere  technicalities  therefore,  cannot  defeat  the  purpose  of  

adoption, particularly when the defendants/respondents have not made  

any attempt to disprove the said document.  No reference was ever  

made  either  by  them,  or  by  their  witnesses,  to  this  document  i.e.  

registered adoption deed. Undoubtedly, the natural parents had signed  

20

Page 21

alongwith 7 witnesses and not at the place where the executants could  

sign. But it is not a case where there were no witnesses except the  

executants.  Instead  of  two witnesses,  seven  attesting  witnesses  put  

their signatures.    

24. In  Atluri Brahmanandam (D), Thr. LRs. v. Anne Sai Bapuji,  

AIR 2011 SC 545, the Court held:

“The aforesaid deed of adoption was produced   in evidence and the same was duly proved in   the  trial  by  the  evidence  led  by  PW-1,  the   respondent.  We have carefully  scrutinized the  cross-examination of the said witness. In the  entire  cross-examination,  no  challenge  was   made  by  the  appellant  herein  either  to  the   legality  of  the  said  document  or  to   the validity of  the  same.  Therefore,  the  said   registered adoption deed went  unrebutted  and  unchallenged.  We have already referred to the recitals in the   said documents which is a registered document   and  according  to  the  recitals  therein,  the   respondent was legally and validly adopted by   the adoptive father. Since the aforesaid custom  and aforesaid adoption was also recorded in a   registered deed of adoption, the Court has to   presume  that  the  adoption has  been made  in   compliance with the provisions of the Act, since   the respondent  has utterly failed to challenge   the  said  evidence  and  also  to  disprove  the   aforesaid adoption.”              (emphasis added)

21

Page 22

25. The  appellate  courts  could  therefore,  not  have  drawn  any  

adverse inference against  the appellants/plaintiffs  on the basis  of  a  

mere technicality, to the effect that the natural parents of the adoptive  

child had acted as witnesses, and not as executors of the document.  

Undoubtedly, adoption disturbs the natural line of succession, owing  

to which, a very heavy burden is placed upon the propounder to  prove  

the adoption. However, this onus shifts to the person who challenges  

the adoption, once a registered document recording the adoption, is  

brought before the court.  This aspect must be considered taking note  

of various other attending circumstances i.e., evidence regarding the  

religious ceremony (giving and taking of the child), as the same is a  

sine qua non for valid adoption.   

26. The trial  court  in  this  regard,  has  held that  the fact  that  the  

natural parents of the adoptive child had signed alongwith seven other  

witnesses as attestants to the deed, and not as its executors, would not  

create any doubt regarding the validity of the adoption, or render the  

said  registered  document  invalid,  as  they  possessed  sufficient  

knowledge with regard to the nature of the document that they were  

executing,  and  that  additionally,  no  challenge  was  made  to  the  

registration of  the document,  immediately after  its  execution.   The  

22

Page 23

First  Appellate  Court  took  note  of  the  deposition  of  Shri  Vasant  

Bhagwantrao  Pandav  (PW-1),  who  had  deposed  that  the  adoption  

deed  had  been  scribed,  and  that  the  signatures  of  the  parties  and  

witnesses  to  the  deed had  been  taken  on the  same,  only  after  the  

contents of the said document had been read over to Smt. Laxmibai,  

the adoptive mother, and then to all parties present. Smt. Laxmibai,  

appellant/plaintiff was in good health, both physically and mentally, at  

the time of the adoption. The validity of the adoption deed, however,  

was being challenged on the basis of the mere technicality, that only  

interested witnesses had been examined and the court finally rejected  

the authenticity of the said document, observing that witnesses who  

wanted to give weight to their own case, could not be relied upon.  

27. The appellate  courts  further  held that  the  adoption deed had  

neither been properly executed, nor satisfactorily proved, and that as  

the  adoption  remains  a  unilateral  declaration  by  the  

appellants/plaintiffs, owing to the fact that the natural parents of the  

adopted child, had not signed the adoption deed as executors but as  

witnesses,  the  same  could  not  be  held  to  be  a  valid  deed.  

Undoubtedly, a mere signature or thumb impression on a document is  

not adequate with respect to proving the contents of a document, but  

23

Page 24

in a case where the person who has given his son in adoption,  appears  

in the witness box and proves the validity of the said document, the  

court ought to have accepted the same, taking into consideration the  

presumption under Section 16 of the Act 1956, and visualising the  

true purport of the document, without going into such technicalities.  

This  must  be  done  particularly  in  view  of  the  fact  that  the  

defendants/respondents  have  not  made  even  a  single  attempt  to  

challenge the validity of the said document.  In fact, they have not  

made any reference to the same.  We have no hesitation in holding  

that the document was valid, and that the same could not have been  

discarded by the appellate courts.    

28. There is ample evidence on record to prove the occurrence of  

the giving and taking ceremony.  The trial court, after appreciating  

such evidence, found the same to be a valid ceremony. The appellate  

courts have expressed their doubts only with reference to the fact  that  

the witnesses that were examined in court, were all beneficiaries of  

the said adoption.  Shri Vithal Pandit Mahajan (PW-4), by any means,  

cannot be labeled as an interested witness. He was a freedom fighter,  

who  worked  in  the  Hyderabad  Liberation  Movement.   He  was  a  

medical man by profession, and was also involved in public life. He  

24

Page 25

was not therefore, likely to be influenced by any of the parties, and he  

had duly supported the case of the appellants/plaintiffs regarding the  

adoption ceremony.  The appellate courts  adopted a rather  unusual  

course,  and  drew  adverse  inference  on  the  basis  of  the  non-

examination of the appellant/plaintiff, Smt. Laxmibai, observing that  

considering  her  old  age,  she  could  have  taken  recourse  to  the  

procedure,  prescribed  under  Order  XVIII  Rule  16,  Code  of  Civil  

Procedure, 1908, which lays down, that where a witness is about to  

leave  the  jurisdiction  of  the  court,  or  where  some other  sufficient  

cause is shown to the court owing to which it would be prudent for it  

to ensure that his evidence is taken immediately, the court may, upon  

the application of  the party or of  the witness at any time after the  

institution of the suit, take the evidence of such witness/party,  in the  

manner  provided therein.  

The appellant  was  just  above  70 years  of  age  and  hale  and  

hearty. She was not suffering from any serious ailment e.g. cancer or  

has been on death bed. Thus, there was no occasion for her to file an  

application  under  Order  XVIII  Rule  16  CPC  which  provides  for  

taking evidence  De Bene Esse  for  recording statement  prior  to the  

commencement of the trial.  Mere apprehension of death of a witness  

25

Page 26

cannot be a sufficient cause for immediate examination of a witness.  

Apprehension of a death applies to each and every witness, he or she,  

young or old, as nobody knows what will happen at the next moment.  

More so, it is the discretion of the court to come to a conclusion as to  

whether  there  is  a  sufficient  cause or  not  to  examine  the  witness  

immediately.     

We are  of  the view that  had Smt.  Laxmibai  moved such an  

application, the trial court could not have allowed it after considering  

the aforesaid facts.  

29. Admittedly,  before  the  trial  commenced,  Smt.  Laxmibai  had  

died.   The  other  witnesses  who  entered  the  witness  box  however,  

proved the adoption ceremony and adoption deed.  Smt. Gopikabai  

was not examined.  Thus, the question that arises is whether the court  

has to weigh or count the evidence and also whether a deposition of a  

witness  is  to  be  doubted  merely  on  the  ground  that  the  witness  

happened to be related to the plaintiff.

30. In the matter of appreciation of evidence of witnesses, it is not  

the  number  of  witnesses  but  quality  of  their  evidence  which  is  

important,  as  there  is  no  requirement  in  law of  evidence  that  any  

26

Page 27

particular number of witnesses is to be examined to prove/disprove a  

fact. It is a time- honoured principle, that evidence must be weighed  

and not counted. The test is whether the evidence has a ring of truth, is  

cogent, credible and trustworthy or otherwise. The legal system has  

laid  emphasis  on  value  provided  by  each  witness,  rather  than  the  

multiplicity or plurality of witnesses.  It  is quality and not quantity,  

which determines the adequacy of evidence as has been provided by  

Section  134  of  the  Evidence  Act.  Where  the  law  requires  the  

examination of at least one attesting witness, it has been held that the  

number  of  witnesses  produced,  do  not  carry  any  weight.   (Vide:  

Vadivelu Thevar v.  State of Madras; AIR 1957 SC 614;  Jagdish  

Prasad v. State of M.P. AIR 1994 SC 1251;  Sunil Kumar v. State  

Govt.  of  NCT of  Delhi AIR  2004  SC 552;  Namdeo v.  State  of  

Maharashtra AIR 2007 SC (Supp) 100; Kunju @ Balachandran v.  

State of Tamil Nadu, AIR 2008 SC 1381; Bipin Kumar Mondal v.  

State of West Bengal AIR201O SC 3638; Mahesh & Anr. v. State  

of Madhya Pradesh (2011) 9 SCC 626;  Kishan Chand v.  State of  

Haryana JT 2013( 1) SC 222).  

31. Furthermore,  there cannot be any dispute with respect  to the  

settled legal proposition, that if a party wishes to raise any doubt as  

27

Page 28

regards the correctness of the statement of a witness, the said witness  

must be given an opportunity to explain his statement by drawing his  

attention to that part of it,  which has been objected to by the other  

party, as being untrue.  Without this, it is not possible to impeach his  

credibility.  Such a law has been advanced in view of the statutory  

provisions enshrined in Section 138 of the Evidence Act, 1872, which  

enable  the  opposite  party  to  cross-examine  a  witness  as  regards  

information  tendered  in  evidence  by  him  during  his  initial  

examination in chief, and the scope of this provision stands enlarged  

by Section 146 of the Evidence Act, which permits a witness to be  

questioned,  inter-alia,  in order to test  his veracity.   Thereafter,  the  

unchallenged part of his evidence is to be relied upon, for the reason  

that it is impossible for the witness to explain or elaborate upon any  

doubts as regards the same, in the absence of questions put to him  

with respect to the circumstances which indicate that the version of  

events  provided by him,  is  not  fit  to  be  believed,  and the witness  

himself, is unworthy of credit. Thus, if a party intends to impeach a  

witness, he must provide adequate opportunity to the witness in the  

witness  box,  to  give  a  full  and  proper  explanation.  The  same  is  

essential  to ensure fair play and fairness in dealing with witnesses.  

28

Page 29

(See:  Khem Chand v. State of Himachal Pradesh,  AIR 1994 SC  

226;  State of  U.P. v.  Nahar Singh (dead)  & Ors.,  AIR 1998 SC  

1328; Rajinder Pershad (Dead) by L.Rs. v. Darshana Devi (Smt.),  

AIR 2001 SC 3207; and Sunil Kumar & Anr. v. State of Rajasthan,  

AIR 2005 SC 1096).    

32. Binorkar (PW-2), photographer was examined by the appellant,  

and he deposed that he was engaged by Laxmibai, the appellant, to  

take photographs of the ‘Datta Homam’ ceremony on 11.5.1971.  He  

narrated the manner in which the adoption ceremony had taken place,  

and further stated that one another photographer had also been present  

at the said ceremony. He further deposed that he had developed the  

photographs  taken  by  him,   and  also  identified  the  photographs  

produced under exhibit 112/18. Photographs marked as serial nos.11,  

12 and 13, alongwith their negatives, were produced by him in court.  

Thus, the photographs as  exhibits 251, 252 and 253 were admitted in  

evidence. He also proceeded to identify Laxmibai appellant, and the  

adopted son in these photographs, as also Vasantrao, who was present  

in court and stated that he had in fact,  been present at  the time of  

adoption. He was cross-examined thoroughly, and was asked a large  

number of questions regarding his dealings with clients. However, in  

29

Page 30

the course of the cross-examination, he was not asked whether he had  

followed the practices mentioned by him in the case of Laxmibai as  

well.  He denied suggestions made to him with respect to whether the  

aforesaid photographs had been developed by him  by resorting to  

trick photography, in view of the fact that  he had certain obligations  

towards  Vasantrao  Pandav,   on  account  of  financial  assistance  

provided to him by the latter.  The trial  Court found his deposition  

worthy of  reliance, taking note of the fact that once he had deposed  

that he had himself taken the photographs, and had also developed the  

negatives, there was no reason to doubt his veracity.  It was not put to  

him in the cross-examination, whether, for the purpose of making or  

preparing  enlarged  prints  of  the  photographs  from  the  negatives  

thereof, the negatives themselves were also required to be enlarged.  

Moreover, the defendants/respondents did not examine any expert on  

this point, who could have provided clarity with respect to whether the  

aforesaid negatives of the photographs of which enlarged prints were  

taken, were also required to be enlarged.  It was in this backdrop that  

his version was found to be correct, and that the same came to support  

the case of the validity of the adoption.

30

Page 31

33. The  First  Appellate  Court  dealt  with  the  same  issue  and  

doubted the veracity  thereof,  on the ground that  there  was another  

photographer as per the version of events provided by this witness,  

who was not examined.  Therefore, the occasion itself was deemed  

suspicious.   Furthermore,  the  photographer  failed  to  produce  the  

record of his studio to show that he had been called to photograph the  

said occasion, or that any order was given to him in this connection.  

In such circumstances, it was difficult to hold that he had in fact been  

engaged  for  the  purpose  of  taking  photographs  of  the  adoption  

ceremony  and  the  entire  testimony  of  Binorkar  (PW-2)  became  

doubtful.  The photographs produced in court, did not contain a stamp  

and  date  on  their  rear  side,  to  show  for  holding  that  they  were  

prepared  at  a  particular  juncture,  as  per  the  instructions  of  the  

appellants/plaintiffs.  The photographs were of different sizes.  The  

First  Appellate  Court  also  doubted  the  enlargement  of  the  said  

photographs.  In  addition  to  this,  he  was  labeled  as  an  interested  

witness merely on the basis of a statement made by him, stating that  

he  wished  that  Raghunath  be  recognised  as  the  adopted  son  of  

Laxmibai.   The  witness  (PW-2),  produced  only  3  undeveloped  

31

Page 32

negatives, even  though he had stated that he had taken a total of 15  

photographs.

34. In Smt. Rajbir Kaur & Anr. v. M/s. S. Chokosiri & Co., AIR  

1988 SC 1845, this Court held that the trial Court is the best judge of  

evidence.   Furthermore,  in  Sarju  Pershad  Ramdeo  Sahu  v.  

Jwaleshwari Pratap Narayan Singh & Ors., AIR 1951 SC 120, this  

Court held, that when there is conflict of oral evidence of the parties  

on any matter in issue and the decision hinges upon the credibility of  

the  witnesses,  then  unless  there  is  some  special  feature  about  the  

evidence of a particular witness which has escaped the trial Judge’s  

notice,  or  where  there  is  a  sufficient  balance  of  improbability  to  

displace his opinion as to where credibility lies,  the appellate court  

must interfere with the finding of the trial Judge on a question of fact.

35.  In  Jagdish Singh v.  Madhuri Devi,  AIR 2008 SC 2296, this  

Court held:

“When there is a conflict of oral evidence on   any  matter  in  issue  and  its  resolution  turns   upon  the  credibility  of  the  witnesses,  the   general rule is that the appellate court should   permit the findings of fact rendered by the trial   court to prevail unless it clearly appears that   some special  feature about  the evidence  of  a   particular witness has escaped the notice of the   

32

Page 33

trial  court  or  there  is  a  sufficient  balance of   improbability  to  displace  its  opinion  as  to   where the credibility lies.... When the Court of   original  jurisdiction  has  considered  oral   evidence and recorded findings after seeing the   demeanour of witnesses and having applied its   mind,  the appellate  court  is  enjoined to  keep   that fact in mind. It has to deal with the reasons   recorded  and  conclusions  arrived  at  by  the   trial  court.  Thereafter,  it  is  certainly  open to   the  appellate  court  to  come  to  its  own   conclusion  if  it  finds  that  the  reasons  which   weighed  with  the  trial  Court  or  conclusions   arrived at were not in consonance with law.”

(See also: Dharamvir v. Amar Singh, AIR 1996 SC 2314; Santosh  

Hazari v.  Purushottam Tiwai (Dead) by Lrs. , AIR 2001 SC 965;  

and G. Amalorpavam & Ors.  v. R.C. Diocese of Madurai & Ors.  

(2006) 3 SCC 224)

36. Similarly, in  Santosh Hazari v. Purushottam Tiwari, (2001)  

3 SCC 179, this Court observed :

"The  appellate  Court  has  jurisdiction  to   reverse or affirm the findings of the trial Court.   First appeal is a valuable right of the parties   and unless restricted by law, the whole case is   therein open for rehearing both on questions of   fact and law. …..While writing a judgment of   reversal  the  appellate  Court  must  remain   conscious  of  two  principles.  Firstly,  the   findings of  fact  based on conflicting evidence   arrived at by the trial Court must weigh with   the appellate Court, more so when the findings   are  based  on  oral  evidence  recorded  by  the   

33

Page 34

same  Presiding  Judge  who  authors  the   judgment.  This  certainly  does  not  mean  that   when  an  appeal  lies  on  facts,  the  appellate   Court is not competent to reverse a finding of   fact arrived at by the trial Judge. As a matter of   law if the appraisal of the evidence by the trial   Court suffers from a material irregularity or is   based  on  inadmissible  evidence  or  on   conjectures and surmises,  the appellate Court   is entitled to interfere with the finding of fact."

(See also: Union of India & Anr. v. Ranchod & Ors., AIR 2008 SC  

938)  

37. There  is  no  prohibition  in  law  for  the  appellate  court  to  

reappreciate the evidence where compelling and substantial  reasons  

exist.  The findings can also be reversed, in case convincing material  

has  been  unnecessarily  and  unjustifiably  stood  eliminated  from  

consideration.  However, the evidence is to be viewed collectively.  

The statement of a witness must be read as a whole as reliance on a  

mere line in a statement of a witness is not permissible.  The judgment  

of  a  court  can  be  tested  on  “touchstone  of  dispassionate  judicial  

scrutiny based on a complete and comprehensive appreciation of all  

views of  the  case,  as  well  as  on the quality  and credibility  of  the  

evidence brought on record”. The judgment must not be clouded by  

the facts of the case.  

34

Page 35

38. The  High  Court  dealt  with  an  issue  and  disbelieved  the  

testimony of  said witness, observing as under :-

“Apparently, the photographer did not produce any  record whatsoever other than the negative and the  photographs. Therefore, the lower appellate Court  had rightly concluded that the photographs could  not  be  taken  in  evidence  as  the  same  were  not  proved  as  per  law  for  the  cogent  and  proper  reasons mentioned therein.”

39. Respondents/defendants did not examine any expert to discredit  

the  testimony  of  their  witness.  The  adoption  had  taken  place  on  

11.5.1971,  and  the  evidence  of  Binorkar  (PW-2)  was  recorded  on  

7.2.1977.   Thus,  we  are  of  the  view  that  the  view  taken  by  the  

appellate courts is entirely impracticable and does not resonate with  

the  attending  circumstances,  particularly,  when  the  photographer  

(PW-2),  had  denied  the  suggestion  that  he  had  not  brought  the  

Account  Bill  Books  etc.  of  his  studio  as  he  had  not  taken  the  

photographs as stated by him,  on 11.5.1971 i.e., the day of adoption.  

His evidence has also wrongly been doubted because there were two  

photographers  and  the  other  was  not  examined  by  the  

appellants/plaintiffs.  It  is  not  permissible  to  reject  evidence  on  

irrelevant grounds. Nor the judgment can be based on surmises and  

conjectures.  (Vide:  Ashish Batham v.  State of  Madhya Pradesh,  

35

Page 36

AIR 2002 SC 3206; and Rathinam alias Rathinam v. State of Tamil  

Nadu & Anr., (2011) 11 SCC 140)

40. The  appellate  court  has  erred  by  considering  the  irrelevant  

material,  while  the  most  relevant  evidence,  i.e.,  the  adoption  

ceremony and the adoption deed, have been disregarded on the basis  

of mere surmises and conjectures. The correctness or authenticity of  

adoption deed is  not  disputed.  What  is  disputed is  that  the natural  

parents of adoptive child who were definitely executing parties of the  

deed have signed as witnesses alongwith 7 other witnesses. In such a  

fact-situation, by gathering the intention of the parties and by reading  

the  document  as  a  whole  and  considering  its  purport,  it  can  be  

concluded that the adoption stood the test of law. We think that cause  

of justice would be served, instead of being thwarted, where there has  

been substantial  compliance of  the legal  requirements,  specified  in  

Section 16 of the Act 1956.  When substantial justice and technical  

considerations are pitted against each other, the cause of substantial  

justice  deserves  to  be  preferred  and  the  courts  may  in  the  larger  

interests of administration of justice may excuse or overlook a mere  

irregularity or a trivial breach of law for doing real and substantial  

36

Page 37

justice to the parties and pass orders which will serve the interest of  

justice best.  

In view of the above, the appeal succeeds and is allowed.   The  

judgments  and  decrees  of  the  appellate  courts  are  set  aside  and  

judgment and decree of the trial court is restored.  There shall be no  

order as to costs.     

  ..………………………….J.

                                                     (Dr. B.S. CHAUHAN)      

.…………………………..J.  (V. GOPALA GOWDA)

New Delhi,  January 29, 2013

37