IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO (S). 6378 OF 2013   

RATANLAL @ BABULAL CHUNILAL SAMSUKA   …APPELLANT

VERSUS

SUNDARABAI GOVARDHANDAS  SAMSUKA (D.) TH. LRS.  &  ORS.

…RESPONDENT(S)

                              JUDGMENT   

N. V. RAMANA  , J.

1. The appellant is before us aggrieved by the judgment and

decree passed by the High Court of Judicature at Bombay,

in First Appeal No. 1662 of 1996, dated 22.12.2006.  The

High Court has partly allowed the appeal by setting aside

the  judgment  of  trial  court  and  declared  that  the  1st

defendant,  who  is  the  appellant  herein,  was  not  the

adopted son of late Govardhandas Laxmichand Samsuka

and consequently the appellant herein was permanently

restrained  from  representing  himself  as  son  of

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REPORTABLE

Govardhandas and further  restrained him from naming

himself as Ratanlal Govardhandas Samsuka.

2. A  brief  reference  to  the  factual  matrix  necessary  for

disposal of the case on hand are, late Govardhandas has a

brother by name Chunilal Laxmichand who is none other

than  the  father  of  the  1st defendant/appellant  herein.

Right from his childhood, appellant used to reside with

his  paternal  uncle  Govardhandas.  During  his  life

Govardhandas used to carry on business of timber in the

name of defendant No. 5 initially and later he inducted

into business the appellant and defendant Nos. 2 to 4 as

partners.  After  the  death  of  Govardhandas  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

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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 liabilities of the

partnership firm and passed preliminary decree for taking

accounts. But the declaration claimed by the plaintiff that

appellant  is  not  the  adopted  son of  late  Govardhandas

was rejected and the trial court came to the conclusion

that  plaintiff  failed  to  prove  that  defendant  is  not  the

adopted son of late Govardhandas. The reasoning of the

trial court can be summed up as under: a.  Plaintiff failed to prove that appellant herein is not

the adopted son of late Govardhandas.

b.   Continuation  of  biological  father’s  name  over adopted  father’s  name  even  after  the  1973  is

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inconsequential  in  view  of  other  evidences  on record.

c.  That some letters and invitations were addressed to appellant with his adoptive father’s name.

d.   That the priest [Chaturbuj Sharma] who is alleged to  have  performed  the  adoption  ceremony  has deposed in favor of the appellant.

e.    Photographs  taken at  the  time  of  the  adoption ceremony  are  self-explanatory.  It  is  to  be  noted that in one particular photograph appellant is seen with  a  garland  and  absence  of  Asha  or  her husband  in  the  photographs  clearly  proves  that adoption  had  taken  place  one  day  prior  to  the marriage of Asha [daughter of Govardhandas and Respondent].

5. Aggrieved by the judgment and decree passed by the trial

court, the plaintiffs carried the matter to the High Court

in First Appeal No. 1662/96. The appellant herein has not

questioned  the  preliminary  decree  passed  for  accounts

and declaration that late Sundarabai is entitled to 1/5th

share in 5th defendant company as such those findings

have become final. The High Court, while partly allowing

the appeal, concluded that the appellant herein is not the

adopted  son  as  the  conduct  and  circumstances

surrounding  the  adoption  are  suspicious.  The  following

circumstances have  weighed with by the  High Court in

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coming to the conclusion that the factum of adoption was

not proved with cogent evidence- a. Non-production of negatives of alleged photographs

taken during the adoption ceremony.

b. That the photographs do not portray any ceremony being  performed  by  the  priest  involving  the appellant and his adoptive parents.

c. The alleged adoption took place one day before the marriage  of  Asha (daughter  of  respondent),  which casts shadow on the photographs taken during the ceremony.

d. 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.

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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  judicially

recognized in catena of cases. c. The  appellant  has  been  validly  adopted  in  consonance

with the accepted customs.

7. On the other hand, learned counsel appearing on behalf of

the respondents has contended that- a. The  appellant  has  not  pleaded  any  custom  in  Jain

community which allows adoption of married men. b. That  the  adoption  should  be  accepted  only  when  it  is

established with cogent and consistent proof, as it has the

potential to alter the succession. c. The  appellant  retained  his  earlier  name  and  acquired

properties subsequently in his earlier name itself.

8. In the light of the submissions advanced before us, we are

called upon to answer two short questions concerning the

alleged  adoption  of  the  appellant  herein  by  late

Govardhandas  in  the  year  1973.  Hence  the  following

issues arise for consideration before this Court-

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1. Whether the person who alleges the existence

of a custom need not prove the same because

it is judicially accepted? 2. Whether the appellant could plead and prove

the factum of adoption?

9. In response to the issue number one, first and foremost,

we would like to deal with the submission of the learned

counsel  for  the  appellant  that  the  custom  of  giving

married man in adoption in Jain community is judicially

accepted and hence the adoption need not be proved. It is

an admitted fact that the parties concerned in this case

are Jains. There is no dispute that Jains are governed by

the  Hindu  Adoption  and  Maintenance  Act,  1956

[hereinafter  ‘the  Act’  for  brevity]  and  therefore  certain

provisions which may throw some light on the question,

have to be looked into.  Section 3 of  the Act deals with

definitions. The term ‘custom’ is defined as under-

3.  DEFINITIONS-  In  this  Act  unless  the  context otherwise requires- (a) the expressions "custom" and "usage" signify any rule which, having been continuously and uniformly observed for a long time, has obtained the force of law among Hindus in  any  local  area,  tribe,  community,  group  or family; Provided that the rule is certain and not unreasonable  or  opposed  to  public  policy;  and Provided  further  that,  in  the  case  of  a  rule

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applicable  only  to  a  family,  it  has  not  been discontinued by the family;  

10. Section 10 of the Act provides thus-

10.  PERSONS WHO MAY BE ADOPTED-  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

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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

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.  This  Court  in

Thakur Gokal Chand v. Pravin Kumari, AIR 1952 SC

231, has explained the ingredients of a valid custom in

the following manner- “A custom, in order to be binding, must derive its force  from  the  fact  that  by  long  usage  it  has obtained the force of  law, but the English rule that "a custom, in order that it may be legal and binding, must have been used so long that the memory  of  man  runneth  not  to  the  contrary" should  not  be  strictly  applied  to  Indian condition. 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”.

Black’s Law Dictionary defines customary law as “customs

that are accepted as legal requirements or obligatory rules

of  conduct,  practices  and  beliefs  that  are  so  vital  and

intrinsic a part of a social and economic system that they

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are treated as if  they are  laws.”1  Privy  Council  in  The

Collector  of  Madura  v.  Moottoo  Ramalinga

Sathupathi,  12  MIA  397  (1868),  has  observed  that

“under the Hindu System of law, clear proof of usage will

outweigh the written text of law”.  

13. As per the settled law under Section 3(a) the Act, the

following ingredients are necessary for establishing a valid

custom- a. Continuity. b. Certainty. c. Long usage. d. And reasonability.

As customs, when pleaded are mostly at variance with the

general  law,  they  should  be  strictly  proved.  Generally,

there is  a presumption that  law prevails  and when the

claim  of  custom  is  against  such  general  presumption,

then, whoever sets up the plea of existence of any custom

has  to  discharge  the  onus  of  proving  it,  with  all  its

requisites to the satisfaction of the Court in a most clear

and unambiguous manner. It should be noted that, there

are  many  types  of  customs  to  name  a  few-general

customs, local customs and tribal customs etc. and the

burden of proof for establishing a type of custom depend

1  Bryan A. Garner, Black’s Law Dictionary (10th Eds.), p. 468.

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on the type and the extent of  usage. It must be shown

that  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

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same as binding in relation to circumstances similar to

those under consideration. In this case at hand there was

no pleading or proof  which could justify that the above

standards were met.

15. It  would  not  be  out  of  context  to  observe  certain

judicial  decisions  which  throw some  light  on  the  issue

raised  in  this  case  instant.  In  Rup  Chand  v.  Jambu

Prasad, (1910) ILR 32 247, Privy Council held that- “The custom alleged in the pleading was this: " Among  the  Jains  Adoption  is  no  religious ceremony, and under the law or custom there is no restriction of age or marriage among them." And that appears to be the custom found by the High  Court  to  exist.  But  upon  the  argument before  their  Lordships  it  was  strenuously contended that the evidence in the present case, limited as it is to a comparatively small number of centers of Jain population, was insufficient to establish a custom so wide as this, and that no narrower custom was either alleged or proved.

In their Lordships' opinion there is great weight in these criticisms, enough to make the present case an unsatisfactory precedent if in any future instance  fuller  evidence  regarding  the  alleged custom should be forthcoming”.

16. In  Sheokuarbai v. Jeoraj,  AIR 1921 PC 77, Privy

Council  observed  that,  among  the  Sitambari  Jains  the

widow of a sonless Jain can legally adopt to him a son

without  any  express  or  implied  authority  from  her

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deceased husband to make an adoption, and the adopted

son may at the time of his adoption be a grown-up and

married man. The only ceremony to the validity of such an

adoption is the giving and taking of the adopted son.

17. It  is  very  much evident  that  the  appellant  in  this

case has failed to produce any evidence to prove that such

practice  has  attained  the  status  of  general  custom

prevalent among the concerned community. Custom, on

which the appellant is relying, is a matter of  proof and

cannot  be  based  on  a  priori reasoning  or  logical  and

analogical deductions, as sought to be canvassed by the

appellant herein. Hence the issue is answered against the

appellant.

18. In response to issue number two, we are concerned

here  with  the  custom of  adopting  married  sons  in  the

community  of  the  appellant.  The  only  evidence,  the

appellant has adduced, is his own testimony and a word

of a priest who had performed the ceremony. A general

custom  which  the  appellant  intends  to  prove  requires

greater proof than the one appellant adduced before the

court. Moreover, there is no dispute with regard to the fact

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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  for  doubting  its  truth.  Failure  to produce  accounts,  in  circumstances  such  as have been proved in the present case, would be a very suspicious circumstance.

(emphasis supplied)

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20. In  Rahasa Pandiani (dead)  by LRs. and Ors. v.

Gokulananda  Panda  and  others,  AIR  1987  SC  962,

aforesaid aspect was observed as under: “When  the  Plaintiff  relies  on  oral  evidence  in support of the claim that he was adopted by the adoptive  father  in  accordance  with  the  Hindu rites, and it is not supported by any registered document  to  establish  that  such  an  adoption had really and as a matter of fact taken place, the Court has to act with a great deal of caution and circumspection.  Be it  realized that setting up a spurious adoption is not less frequent than concocting a spurious will,  and equally,  if  not more difficult to unmask. And the Court has to be extremely alert and vigilant to guard against being  ensnared  by  schemers  who  indulge  in unscrupulous  practices  out  of  their  lust  for property.  If  there  are  any  suspicious circumstances, just as the propounder of the will  is  obliged  to  dispel  the  cloud  of suspicion, the burden is on one who claims to  have  been  adopted  to  dispel  the  same beyond  reasonable  doubt.  In  the  case  of  an adoption which is not supported by a registered document or any other evidence of a clinching nature if there exist suspicious circumstances, the same must be explained to the satisfaction of  the  conscience  of  the  Court  by  the  party contending  that  there  was  such  an  adoption. Such is the position as an adoption would divert the  normal  and natural  course  of  succession. Experience of  life  shows that  just  as  there have been spurious claims about execution of a will, there have been spurious claims about adoption having taken place. And the Court has therefore to be aware of the risk involved in upholding the claim of adoption if  there are  circumstances  which  arouse  the, suspicion of the Court and the conscience of the Court is not satisfied that the evidence

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preferred  to  support  such  an  adoption  is beyond reproach”.

                                                           (emphasis supplied)

21. In  the  light  of  the  above  precedents,  it  would  be

necessary  to  observe  statements  of  certain  witnesses.

Appellant,  himself,  got examined as a witness, which is

marked  as  Ex.  121.  He  stated  that  after  death  of  his

biological father in 1972, he came to Nasik to continue his

education  while  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

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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  invitation  cards  were

printed but the same were sent separately and not with

the marriage invitation card. In the cross examination he

states  that  even  though  the  marriage  was  held  on

09.07.1973, certain marriage ceremonies were held as per

community traditions on 08.07.1973. That he was aged

thirty-two when he was allegedly adopted and he does not

know of any examples of adoption of a thirty-two-year-old

man. He admits that he did not submit any document to

show that he was using his adoptive father’s name after

1973. He further states that he had filed an application

before the municipal council for succession rights, but the

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same was not produced in the suit. Moreover, he states

that he was filing income tax returns in his earlier name

‘Ratanlal Chunilal’.

22. One Chaturbuj Laxminarayan Sharma was examined

as witness no. 2 on behalf of the appellant. His deposition

was  marked  as  Ex.  No.  152.  He  stated  that  he  knew

Govardhandas  for  30  years.  He  used  to  perform

ceremonies for his family including the adoption ceremony

of the appellant which had taken place at the residence of

Govardhandas.  He  deposed  that  the  ceremony  was

attended by a gathering of 100 to 200 people. According to

him  he  had  performed  Navgrah  pooja,  Kuldevi  pooja,

Laxmi-narayan  pooja,  havan  and  sankalp  as  part  of

adoption. Thereafter, name of the appellant was changed

from Ratanlal Chunilal to Ratanlal Govardhandas. At the

time of the ceremony, mother of the appellant gave hand

of  the  appellant  in  the  hands  of  Govardhandas.

Photographs were taken at the time of the ceremony. In

the cross examination he stated that invitation card for

the  ceremony  was  published  and  distributed.  He  was

unable to tell who decided to perform adoption ceremony

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by giving hand of the appellant. He admits that in Jain

community, person to be adopted has to be seated on the

lap of the adopting father. But he stated that Ratanlal was

not asked to take a seat on the lap of Govardhandas as he

was weak and defendant No. 1 (Ratanlal) was healthier;

this  is  a  glaring  contradiction  between  the  evidence  of

appellant  and  the  priest.  One  Harakchand  Bhansali  of

Kapoorgaon was adopted after  he was married.  He was

not able to give particulars of such adoption. Further he

states  that  he  does  not  know of  any  other  example  of

adoption of a married person.

23. Girjappa Gangaram Kothule, who was examined as

defense 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

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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 plaintiff

to  prove  the  adoption  which  is  contrary  to  law.  The

appellant failed to satisfy the Court that any question of

law much less substantial questions of law arise in this

appeal which warrant interference of this Court.

25. Having  regard  to  the  evidence  available  on  record

and the circumstances elucidated herein above, the view

taken by the High Court, being convincingly reasonable,

we see no reason to interfere  with the judgment of  the

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High Court. Accordingly, this appeal is dismissed. There

shall be no orders as to costs.

……………………..……J.       (N. V. RAMANA)

…………………………..J.       (AMITAVA ROY)

New Delhi, November 22, 2017

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