1. The above Second Appeal was referred to a Division Bench by Kania, J. on March 24, 1976.
2. The Second Appeal arose out of a suit filed toy the appellant, Haribai Dattu Sutar, on April 4, 1967, to get possession of the property described at Serial No. 4 in para 1 and also to get possession of the remaining one-half portion of the property at Serial No. 3 in para 1 of the plaint; and for an injunction restraining the defendants NOS. 1 and 2 from obstructing the plaintiffs Vahiwat in the property at Serial No. 5 in the plaint.
3. The property described at Serial Nos. 3 and 4 in para 1 consisted of agricultural lands. The property at Serial No. 5 consisted of a house and an open site. These properties originally belonged to Banubai widow of Tatoba Sutar. She had two daughters viz. the plaintiff and one Bhagirathi. Bhagirathi died long ago. Plaintiff Haribai, who was married, was staying with her mother during Banubai's lifetime, looking after the needs of Banubai. Banubai executed a Will on October 30, 1961. The Will is at Ex. 79. It was executed in favour of the plaintiff and the husband of Bhagirathibai, viz. Chandrappa. Chandrappa executed a registered release deed (Ex. 89) in her favour on October 10, 1965, in respect of his one-half share in the property. Banubai died on February 25. 1962.
4. It was alleged In the plaint that in June 1963, the two defendants dispossessed her of the suit properties at Serial Nos. 3 and 4 and were threatening to dispossess her of the property at Serial No. 5 viz. the house which was in her possession. Defendant No. 1 claimed to be the adopted son of Banubai under a registered adoption deed dated November 24, 1961 (Exh. 82). According to the plaintiff, the adoption, even if proved, was not valid, inasmuch as it was alleged to (be made and the adoption deed was obtained by practising fraud and misrepresentation on the old woman and also because the defendant No. 1 was more than 15 years old at the time of the alleged adoption. On the basis of the said allegations, the plaintiff claimed possession of properties at Item Nos. 3 and 4 and perpetual injunction in respect of Item No. 5.
5. The defendants resisted the suit. They denied the execution of the Will. They further alleged that the Will must have been obtained by exercising fraud on Banubai and without letting her to know the nature of the document. According to them, they were brought up by the old woman, as if they were her sons and out of love and affection she adopted defendant No. 1, out of them, on November 24, 1961, at Karad, and registered the deed of adoption on the same day. She also executed an agreement, Exh. 81, on the same day in favour of their mother Sitabai. They contended that by these two documents, Banubaihad revoked the Will in favour of the plaintiff. They denied that any fraud was exercised on Banubai for obtaining the adoption deed. They contended that the adoption of defendant No. 1, though he was more than 15 years of age, was permissible under the custom prevailing amongst the community to which the parties belonged and also generally in Karad. Defendant No. 1 thus claimed title to the suit property as the adopted son of Banubai. and submitted that the suit of the plaintiff was liable to be dismissed with costs,
6. The parties led oral and documentary evidence and on consideration of the said evidence, the learned trial Judge held that Banubai had validly executed the will in favour of the plaintiff and Chandrappa; and Chandrappa had released his 1/2 interest in the property in the year 1965. He held that there was fraud practised on Banubai by the plaintiff and Chandrappa. He also held that the old woman adopted the defendant No. 1 on November 24, 1961, but that the adoption was invalid because the defendant No. 1 was more than 15 years old at the time of adoption; and there was no custom duly proved by him validating such adoption.
7. In the result, he decreed the suit with costs by directing that the plaintiff do get possession of the land at Serial No 4 from the defendant No, 1, that she should also get joint possession of 1/2 portion of the land at Serial No. 3 from the defendants, although it is difficult to explain why he gave only the joint possession. He also restrained the defendants from obstructing the plaintiff 'in her cultivation and Vahiwat', although the serial number was treated as only the house and he directed inquiry into mesne profits under Order XX, Rule 12 (1) (c) of the Civil Procedure Code, by his judgment and decree, dated August 31, 1968.
8. In an appeal filed by the defendant No. 1, the said judgment and decree were set aside; and the plaintiff's suit was dismissed with costs, as the learned Extra Assistant Judge, Satara, reversed the findings recorded by the trial Court and held that the plaintiff failed to prove the execution and attestation of the Will, as he came to the conclusion, on consideration of the evidence, that the attestation of the Will was not satisfactorily established and the circumstances excited the suspicion of the Court about the genuineness of the Will.
9. He held that the plaintiff herself had admitted in the R. T. S. Proceedings that the will was obtained by Chandrappa by practising fraud on Banubai, in her absence. In this respect, Banubai had herself sent a notice to Chandrappa complaining about the fraud practised by him on her. When she was confronted with these statements made in the R. T. S. Proceedings, in the present suit, she denied having made such a statement.
10. Secondly, a perusal of the release deed at Ex. 80 also shows that Chandrappa stated therein that after the execution of the Will, the old woman had sent for him and requested him not to act upon the Will and claim any interest for himself thereunder, which appears strange having regard to the statement she had made earlier,
11. Thirdly, the learned Assistant Judge found it rather a strange conduct on the part of Banubai in adopting the defendant No. 1 within three weeks after the execution of the Will. The learned Assistant Judge rightly held that these three circumstances made the genuineness of the Will doubtful; and. therefore, he came to the conclusion that the plaintiff failed to prove conscious execution and attestation of the Will by Banubai, as required by law.
12. The learned Assistant Judge further came to the conclusion that the factum of adoption was proved by the evidence of Ramchandra Bhosale, Yeshwant Yadav and Shrirang Bachal, who were aged 22, 25 and 20 years, respectively, at the time of their respective adoptions. The evidence adduced by them showed that there was such a custom prevailing in the area, where the adoption of defendant No. 1 took place, which validates the adoption of defendant No. 1, he being aged about 15 years.
13. The learned Assistant Judge also relied on the evidence of the defendant No. 1's mother, Sitabai and the evidence of Yeshwant Yadav and Shankar Jangam, who also deposed regarding the prevalence of the custom of the adoption of boys of over 15 years. The learned Assistant Judge was of the view that the trial Judge was wrong in discarding their testimony only because they were not in a position to state that such custom was prevalent in Sutar community.
14. The learned Assistant Judge also relied on an unreported decision of V. S. Desai, J. in Second Appeal No. 713 of 1964, decided on 15-6-1965 (Bom). In that case, after considering the provisions of Section 10 of the Hindu Adoptions and Maintenance Act, and the definition of the word 'custom' in Section 3 of the Act, and the decision of this Court in Nathaji Krishnaji v. Hari Jagoji (1871) 8 Bom HCR 67, V.S. Desai, J. observed as follows:
'There is no doubt whatsoever that in the part of the country to which the BombaySchool of Hindu Law applied, person of any age is capable of being taken in adoption. He may be even older than the adoptive mother or father. He may also be a married person having children and even grand-children-The adoption of a married person and even of a person who is older than the adoptive father or mother has been regarded as valid in some of the decided cases on the ground that there is no prohibition in the Hindu Law against such adoption. The adoption of a person of any age is also accepted as valid on the same ground as also on the ground that such adoptions have taken place and accepted as valid on the basis of a long established custom.'
In other words, there is a rule of conduct in this area which was observed continuously and uniformly for a long time, that a person of any age can be validly adopted. It can, therefore, be said that there is a custom in this area, which permits the adoption of a boy who has completed the age of 15 years. In my opinion, Mr. Bhandare is also right in his contention that the lower Courts have erred in taking the view that the custom referred to in Section 10 is a custom which has come into existence after the coming into operation of the Hindu Adoptions and Maintenance Act.'
15. The learned Assistant Judge, following this decision, found that the adoption of defendant No. 1 by Banubai was valid, according to the custom prevailing in the area, governed by the Bombay School of Hindu Law. In view of this conclusion, be came to the conclusion that, under the adoption deed Ex. 82, Banubai had made defendant No. 1 as the absolute owner; and in view of that declaration her previous Will was revoked, within the meaning of Section 70 of the Indian Succession Act. He further came to the conclusion that that declaration which was duly attested by five witnesses under the registered adoption deed amounted to transfer of her interest absolutely to defendant No. 1,
16. The learned Assistant Judge further held that this conclusion was fortified by what was stated in the agreement Ex. 81, which was executed in favour of Sitabai, the natural mother of defendant No. 1, wherein Banubai had reiterated that she had constituted the defendant No. 1 the absolute owner of the property belonging to herself and her husband, further making a declaration that she could not use the rights acquired by her under the Hindu Succession Act to the prejudice of defendant No. 1 and that he would acquire all these rights absolutely on her death. The learned Assistant Judge held that even this agreement Ex. 81 amounted to revocation of the Will. The findings of the learned Assistant Judge are challenged in the above second appeal by the plaintiff.
17. When the second appeal came up for hearing before Kama, J, a reference was made to the judgment of Malvankar, J., in Second Appeal No. 1444 of 1965, with Civil Appln. No, 409 of 1967, decided on 24-4-1972 (Bom) where a view was taken that the Bombay decisions did not show that the validity of adoption was upheld on the basis of custom; and, therefore, the adoption of a boy of more than 15 years of age was invalid under Section 10(iv) of the Hindu Adoptions and Maintenance Act, 1956. In view of the said judgment of Malvankar, J. being in conflict with the view taken by V.S. Desai, J., Kania, J. referred this second appeal to a Division Bench for hearing and final disposal.
18. It was urged on behalf of the defendant No. 1, that the view taken by V.S. Desai, J. was the view taken by Nain, J. in Dnyanu Gopal v. Jijaba Bala, : AIR1972Bom98 ; and also by one of us (Vaidya, J.) in Ramchandra v. Baburao 1976 M LJ 125; and the view of Malvankar, J. was erroneous. On the contrary, it was urged on behalf of the plaintiff that the view taken by Malvankar. J, was based or. a careful consideration of the facts and decisions in Mhalsabai v. Vithoba K. Gulve (1870) 7 Bom HCR 26 and in Nathaji Krishnaji v. Hari Jagoji, (1871) 8 Bom HCR 67, and She conclusion drawn therefrom that (he rule followed by the Bombay School of Hindu Law was based on Vyavahara Maynkha and not on any custom established in those cases.
19. Similarly, it was pointed out in that case by Malvankar, J. that the decisions in Lakshmappa v. Ramava (1875) 12 Bom HCR 364 and in Dharma Dagu v. Ramkrishna Chimnaji ILR(1886) Bom 80, were based on Vyavahara Mayukha and other texts of Hindu Law referred to in the said decisions. According to Malvankar, J., in Gopal Balkrishna v. Vishnu Raghunath ILR(1899) Bom 250, in regard to the observations made in the judgment, it was not strictly necessary to discuss the validity of the objection arising out of the difference of age between the adopted son and the adopting mother. It was further observed in that case that the rule prescribing a difference of age in favour of the adopting mother must be only regarded as directory rule, and not a command. Malvankar, if, further observed that in Balabai Tukaram v. Mahadu Krishna,ILR 48 Bom 387 : AIR 1924 Bom 349, the decision was again based not on custom but was on rules of Hindu Law, as interpreted by the Courts.
20. The learned Judge also relied on a passage in Dr. Derrett's Introduction to Modern Hindu Law, 1963 Edition, page 112, where the learned author has observed: -
'The adoption of married boys was regular under the text of Vyavahara Mayukha for all castes, and thus became a common place in the former Bombay Presidency, It was reported as customary in certain castes in other parts of India.'
He pointed out that even the decision in Vishwasrao v. Sahebrao, : AIR1958Bom375 , was really based on the texts of Vyavahar Mayukha.
21. Notwithstanding the passages in Mayne's Hindu Law and Usage, 1953 edition, paragraph 181, pages 235 and 236, Hindu Law by H.R. Raghavachariar, 6th edition, page 149, paragraph 143, and Mulla's Hindu Law, 13th edition, Section 480 subsection (3) at page 500, Malvankar, J. observed:
'But all these authorities are based on the decision which I have discussed above and in none of them, there is any indication that the rule that an adoption of a person exceeding 15 years of age is permissible as a result of any custom. I am, therefore, of the opinion that the rule which permitted any person more than 15 years of age to be taken in adoption was based on the text or rule or interpretation of Hindu Law and not on any custom and, therefore, the adoption of the present appellant was rightly declared invalid by both the Courts below.'
22. The learned Judge further considered the definition of the word 'custom' contained in Section 3(a) of the Hindu Adoptions and Maintenance Act. In connection with the argument that Vyavahar Mayukha was itself nothing more than crystalised custom in Bombay Presidency, while rejecting the argument he Observed:
'In fact, if the argument is accepted, any text of Hindu Law would in one sense be congeries of customs and, therefore, Section 4 of the Act would be rendered meaningless, inasmuch as every text or rule of Hindu Law can be interpreted to mean congeries of customs and, therefore, saved Wherever there is express provision in the Act including Section 16 (iv). I, therefore, do not see any substance in this argument.'
23. It must he noted at the outset that the judgment of Nain, J., which was decided on September 22, 1970, was not brought to the notice of Malvankar, J., and none of the above judgments were brought to my notice, when I decided the case in Ramchandra v. Baburao (1976) M LJ 125,
24. What we have to consider, in connection with the validity of adoption of a boy of more than 15 years, in an area which fell within the limits of the Bombay Presidency to which the Bombay School of Hindu Law applies, is first the definition of the word 'custom' in Section 3 of the Hindu Adoptions and Maintenance Act, 1956, which is as follows:
'In this Act, unless the context otherwise requires,--
(a) the expressions 'custom' and 'usage' signify any rule which, having been continuously and uniformly observed for a long time, has obtained the force of law among Hindus in any local area, tribe, community, group or family;
Provided that the rule is certain and not unreasonable or opposed to public policy: and
Provided further that, in the case of a rule applicable only to a family, it has not been discontinued by the family.'
25. The definition gives importance net to any particular custom or usage as opposed to Dharmashastra Text but to 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. It does not speak of any rule not based on any text or based on custom. It may be a rule having its origin or the genesis in a text or in a decision of the Court of law. If in any particular local area, the rule has been continuously and uniformly observed for a long time, it must be considered as the 'custom' and 'usage' for the purpose of the Hindu Adoptions and Maintenance Act.
26. The definition in a way gives effect to the well-known legal maxim: 'Via Trita Via Tuta'. (The beaten way is the safe way). The definition which Malvankar, J. with great respect, appears to have assumed to apply made distinction between a rule founded on custom and a rule founded on Vyavahar Mayukha or other Hindu Dharma Shastras or the text Such a distinction is not germane to the definition of the word 'custom' in Section 3(a). All that is required for purposes of that definition is that a rule must have been continuously and uniformly observed for a long time; and it must have obtained the force of law among Hindus in any local area, tribe, community, group or family. Whether it was based on a book of DharmaSastras like Vyavahar Mayukha or any other text was irrelevant to the definition of 'custom* under the Act
27- This view was the one which was adopted by V.S. Desai, J. in Second Appeal No. 713 of 1964, decided on June 15, 1965. after referring to the case in Nathaji Krishnaji v. Hari Jagoji and other cases. Nais, j. also appears to have taken a similar view on consideration of Section 10(iv) of the Hindu Adoptions and Maintenance Act, which runs as follows:
'No person shall be capable of being taken in adoption unless the following conditions are fulfilled, namely--
(i) xx xxx(ii) xx XXX(iii) xx xxx(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.' Nain, J. observed in Dnyanu Gopal v. Jijaba Baba, : AIR1972Bom98 :
'In the judgment of the learned District Judge reliance for proving the custom has been placed on two instances, one of 1942 and another of 1948 and certain oral evidence. These instances may not be sufficiently ancient to establish a custom. But what Section 10(iv) of the Hindu Adoptions and Maintenance Act, 1956, talks of is not only custom, but also usage, The instances and evidence would be sufficient to establish a usage. However, this sufficiency of evidence for establishing a custom or usage loses all importance in territories which were formerly part of State of Bombay, such as Satara District. Even prior to the passing of the Hindu Adoptions and Maintenance Act in 1956, the Hindu law applicable to the Bombay State was that a person may be adopted at any age even though he may be older than the adopter and even though he may be married and had children. It is well known that Hindu law in India is derived from various texts and commentaries some of which have by custom held the field in various parts or India. Hindu law, therefore, is by itself customary law, except to the extent to which it has been subsequently codified. In my opinion, therefore, the prohibition contained in Section 10(iv) against the person adopted who has completed the age of 15 years has no meaning in relation to male persons adopted in the territories which were comprised in the former State of Bombay which include the District of Satara from where this appeal comes. The custom or rule of Hindu taw prevailing in these territories permitting adoption of males over the age of 15 years is expressly saved by Section 10(iv).'
28. Nain, J. has not expressly referred to the definition of Section 3, hut it appears that his observations were impliedly based on the definition which makes no distinction between the rule which prevailed in a particular area, as a result of interpreting the Dharmashastra text, or as a result of custom amongst the communities to which parties belong.
29. As already stated above, what is required by the definition of the words 'custom' and 'usage' makes no difference between custom, usage and text All that Section 3(a) lays down is that the rule must be followed and observed for a long time continuously and uniformly, in the community and it has obtained the force of law among Hindus in any local area, tribe, community, group or family.
30. In Ramchandra v. Baburao (1976) M LJ 125, the passage in Dr. Kane's History of Dharmashastra, Volume III, p. 680, was quoted; and it was held that notwithstanding what was stated in the aforesaid Dharmashastra Books, the Bombay School of Hindu Law never recognised any age limit for adoption. That is the legal custom and lex loci generally among Hindus relating, to adoption in this part of the country, within the meaning of the definition of 'custom' under the Hindu Adoptions and Maintenance Act,
31. The history of the evolution of the rule in this country is dealt with great scholarship and precision by Dr. Kane in History of Dharmashastra at pp. 679 to 681, as follows:
'As to the age of the boy to be adopted there is great divergence among the medieval writers which is also reflected in the case law, In this connection certain verses of the Kalikapurao assume great importance. The Vyavaharamayukha and the Dattakachandrika hold that the passage is of doubtful authenticity (as the verses are not found in several mss.), while the D.M. (Dattaka Mimansa) and the Nirnyasindhu hold them to be genuine, and the Sam. K. (Samskara-Kaustubha) pp. (169-172) after referring to these views states that those verses are opposed to what is stated in the Ait. Br. (Aitarya Brahmana) about Sunhasepa who was adopted by Visvamitra as a son even after Upanayana. The verses are: 'O King; that son, whose samskaras up to (including) the coda (tonsure) ceremony are performed with the gotra of his (natural) father, does not (i. e. cannot) attain the status the adopted son of another. When the ceremonies of coda and upanayanaare performed under his own gotra (by the adoptive father) the dattaka and the other kinds become (recognised as) sons (in the adoptive family); otherwise they are called dasa (slave). After the fifth year the adopted son and the rest cannot be (recognised as) sons. Having taken one who is five years old, one (the adopter) should first perform the purest.' These verses state four propositions: (1) If all samskaras from jatakarma to coda(i. e. including it) have been performed in the family of birth that boy cannot be adopted in another family; (2) if a boy's cuda and other later ceremonies are performed in the family of adoption he is fully an adopted son; (3) a boy over five years of age cannot be adopted at all; (4) a boy whose cuda has been performed in the family of birth may be adopted up to five years, provided the rite called purest is first performed hi the adoptive family before any other ceremony is performed on the adopted boy. The D.M. (Dattaka Mimansa) says that the best time for adoption is up to three years, then from three years to five is the next best (gauna) and that after five no boy can be adopted. The D.G. (Dattaka Chandrika) (p. 36) holds that a boy of the three higher classes can be adopted up to upanayana and that a sudra boy can be adopted till his marriage- The Nirnyasindhu seems to be of the same opinion. The V. Mayukha (Vyavahar Mayukha) and Sam. K. (Samskara Kaustubha) both hold that even a boy not of the same gotra may be taken in adoption after upanayana or after marriage and even when the person to be adopted has himself had a son. In Bengal, Banaras and Bihar the courts hold that the boys must be adopted before upanayana. The same rule holds good in Madras; but there it is further held that if the boy to be adopted is of the same gotra as the adopter, the adoption may be made after upanayana but before marriage, In Bombay a person may be adopted at any age, even after marriage and even after he has had children and he may be even older than the adopter. In the whole of India, a sudra may be adopted only before his marriage, but in the Bombay Presidency the adoption of a married man and of one having even a child is allowed also among sudras.'
32. Having, regard to the above authoritative statement of the law, it must be held that the view taken by Malvankar, J. is, with respect, inconsistent with the long line of authorities of tins Court, which establish the rule which has been continuously and uniformly observed for along time and has obtained the force of law among. Hindus in this part of the country. That rule amounts to a 'custom' and 'usage' within the meaning of the words 'custom' and 'usage' contained in Section 3(a) for the purposes of Section 10(iv) of the Hindu Adoptions and Maintenance Act.
33. Moreover, the attention of Malvankar, J. was also drawn to a decision in Balabai Tukaram v. Mahadu Krishna 26 Bom LR 222: AIR 1924 Bom 349, where Macleod, C. J., and Shah, J. observed as follows:
'It is quite true that the adoption of a boy who is older than the adoptive father is contrary to the recognised notions of Hindus as to adoptions, and to the fundamental idea of an adopted son. That is the reason why such adoptions are very rare. But having regard to the lines on which these rules relating to adoptions have been interpreted by the Courts, it is difficult to hold that the consideration that the adopted boy should not be older than his adoptive father, can be treated as having the force of a prohibitive rule.'
Malvankar, J. has interpreted this to mean: 'the decision is not based on custom, but the rules of Hindu law as interpreted by the Courts'. Here again, with respect, the distinction which Malvankar, J. made is foreign to the definition of the words 'custom' and 'usage' contained in Section 3(a) of the Hindu Adoptions and Maintenance Act
34. The law as stated by this Court, as early as in 1871, over 100 years ago, in Nathaji Krishnaji v, Hari Jagoji (1871) 8, Bom HCR 67, which was mainly relied upon by V.S. Desai, J. was the law 'obtaining the force of law in Western India.' Melvill, J., has no doubt referred to Dattaka Chandrika, Sir Thomas Strange, Mr. Norton and the earlier decisions as well as to Vyavahar-mayukha as discussed by Macnaghten. But he has also stated at page 72;
'And other authorities on this side of India are, so far as they go, of the same tendency, In a case of great importance, Sree Brijbhookunjee Maharaj v. Sree Gookooloot-saojee Maharaj, reported in 1 Borr 181 , the opinion of the Pandits was that 'when a relation is to be adopted, no obstacle exists on account of his being of mature age, married, and having a family, provided he possesses common ability, and is beloved by the person who adopts him,' and the court upheld the adoption. The opinion of the Shastris in that case was recognised as an authority (though on another point) by this court in Rakhmabai v. Radha-bai (1868) 5 Bom HC 181.'
In terms, Malvili, J., observed at the end of the discussion:
'Independently of the Hindu law, we think that there is sufficient authority for holding that such adoptions are in the Dakhan recognised by the custom of the country. Mr. Steele (Law and Custom of Hindu Castes in the Dekkan) p. 44, says, speaking of the law: 'The Poona Shastris do not recognise the necessity that adoption should precede Moon and marriage,' though subsequently, speaking of existing customs, he says the adoptee 'should be adopted previously to the performance of his Moonj or marriage, at least if not a near relation' xx xx xx xx Upon a review of all the authorities, we think that we are justified in holding that in Western India the adoption of a sagotra or relation is not invalid because the person adopted was married at the time of the adoption.'
35. With great respect, when quoting from the judgment of Melvill, J., Malvankar, J., has missed the significance of the above passage, which followed immediately after the passage quoted by him in his judgment, Melvill, J. rested his judgment on custom in addition to the other authorities and texts he has quoted; and yet Malvankar, J. held that the decision was not based on any custom but on the text, rule or interpretation of Hindu Law.
36. It is difficult for us to agree with that view, as it is clear from what Melvill, J. has stated that Melvill, J, was only giving effect to the rule established in Western India as a result of interpretation of texts and having the force of law based on custom and views expressed by various authorities as explained in several cases and recognised in various cases decided by this Court.
37. In Dharma Dagu v. Ramkrishna Chimnaji, ilr(1886) Bom 80, Sargent, C.J., and Birdwood, J. held that the adoption of a married asagotra Brahman to be valid, not only by applying the rule of Hindu Law administered in Western India, but also applying the doctrine of factual valet. The case by case evolution of law was discussed; and once again, it was laid down that having regard to the Hindu Law administered in Western India, the adoption could not be held to be invalid,
38. It must be noted that in that case, strong reliance was placed on a passage in the judgment in Nathaji's case (1871) 8 Bom HCR 87 and Lakshmappa v. Ramava (1875) 12 Bom HC 364, where it was said at page 83:
' 'If marriage' observes Nanabhai Haridas J., 'because incapable of annulment disqualifies a Sudra for adoption, it must equally, on that ground, disqualify a Brahman for that purpose. But we fail to find if mentioned as a disqualifying cause either by Mann, Kulfuka Bhatta, Yajnavalkya or Vijnanesh-vara, or by any of the other authorities of weight in this Presidency. On the contrary, we find the Dharma Sindhu, the Samskara Kaustubha, and the Vyavahara Mayukha distinctly recognising the adoption of a married man, the latter even going a step beyond the other two, and laying it down that a married man, who has even had a son bora, may become an adopted son; and, accordingly, in the case of Shri Brijbhookunjee Maharaj v. Shri Gookoolootsaojee Maharaj, 1 Borr 181the adoption of a married Brahman of the age of forty-five and having a family was considered a good adoption. The argument, therefore, based upon the assumed invalidity of a married Brahman's adoption falls to the ground.' The difficulty of interpreting the passage of Mayukha and Nilkautha's quotation from Kalika Purana, was discussed and ultimately after referring to Steel, Mandlik and other books, in that case also, it was observed that the adoption of a married asagotra Brahman was not prohibited by the Hindu law in force in the Presidency of Bombay.
39. Malvankar, J., with respect, has quoted the above passage and has not made any comment with regard to the position, which according to us, is the rule of Hindu law as interpreted and applied for over a century by this Court with respect to the territory of what was formerly known as the Bombay Presidency.
40. Therefore, with respect we are unable to agree with the conclusion, drawn from these cases decided by this Court, by Malvan-kar, J., that these decisions were based merely on Vyavahara Mayukha and not on custom-In fact, we find that they were based on the rule of Hindu Law, as recognised and enforced in the courts in this part of the country, relying on the absence of any prohibition in Manusmriti, Yadnyavalkya and Vijna-neshwara, as well as the recognition in Vyavahar Mayukha and also as part of the lex loci applicable to all Hindus in the Bombay Presidency, even assuming that the difference between custom, usage and texts were of any relevance for the purpose of the definition of the words 'custom' and 'usage' in Section 3(a) of the Hindu Adoptions and Maintenance Act, However, as already stated above, we are of the view that the definition does not require us to make any such distinction between a rule based on custom or a rule based on any interpretation of Dharmashastra and texts.
41. We must, therefore, hold that the law as stated by Malvankar, J., with respect, is not correct, and the law as stated by V. S. Desai, J., Main, J. and in the decision in Ramchandra v. Baburao 1976 Mh LJ 125, is the true view of the law on the point, particularly having regard to the provisions of the definition of 'custom' and 'usage' under Section 3(a) and Section 10(iv) of the Hindu Adoptions and Maintenance Act; and the uniform and continuous recognition and enforcement of the law regarding the limits on the age of the boy to be adopted, as part of the lex loci applicable generally to Hindus domiciled in this part of the country.
42. Having regard to the above conclusions, the validity of the adoption of defendant No. 1 cannot be questioned by the plaintiff on the ground that he was more than 15 years of age. The factum of adoption cannot also be questioned by the plaintiff in the plaint, particularly when the learned Assistant Judge has rightly come to the conclusion, having regard to the oral and documentary evidence produced, agreeing with the finding of the trial Court, that the adoption of the defendant No. 1 by Banubai, was proved beyond any shadow of doubt. The concurrent finding of fact cannot be challenged in second appeal, in view of the limits on the powers of (his Court under Sections. 100 and 161 of the Code of Civil Procedure.
43. It was next contended that the learned Assistant Judge erred in doubting the genuineness of the Will made by Banubai. This is a matter of appreciation of evidence-The learned Assistant Judge carefully considered the circumstances, which created a strong doubt about the genuineness of the Will and the attestation made by the wit-Besses. We find ourselves in complete agreement with the reasonings and findings re-carded in this behalf.
44. Moreover, the learned Assistant Judge was quite right in his conclusion that the Will, even if proved, must be held to be revoked within the meaning of Section 70 of the Indian Succession Act, in view of Banubai adopting the defendant No. 1, under the registered adoption deed at Ex. 82; and the agreement, which she had entered into with Sitabai, which is at Ex. 81, as the two documents are also attested by more than two persons. The plaintiff cannot, therefore, rely on the Will.
45. It was lastly contended by Mr. Abhyankar, the learned counsel for the appellant, that under Section 14 of the Hindu Succession Act, the deceased Banubai had become the absolute owner of the suit property when she made the Will on October 30, 1961; and the adoption having taken place, on November 24, 1961, after the Hindu Adoptions and Maintenance Act, came into force, the adopted son, defendant No. 1, could not divest Banubai of her right in the property, but she continued to be the owner till she died on February 25, 1962. He, therefore, submitted that the Will could still operate as it was not expressly revoked by Banubai, before she died on February 25, 1962, after the adoption.
46. There is no merit in this contention, firstly, as already stated above, the Will became revoked and ineffective after the adoption and the execution of the adoption deed (Ex. 82) and the agreement (Ex. 81); Secondly, the Will could not come into operation till the death of Banubai; and Banubai had divested herself by making a gift or family arrangement or transfer, under the adoption deed and the agreement with Sitabai, declaring that as a result of the adoption, the adopted son shall become the absolute owner of her estate immediately, This, in our opinion, divested the widow and vested all the property in the son, defendant No. 1, before her death.
47. The Will, therefore, became in fructuous before she died, because when she died she left no property which could be acquired under that will. Moreover, under the Agreement (Ex. 81), she had even declared that she shall not exercise any right vested in her under the Hindu Succession Act, to the prejudice of the adopted son; and as this undertaking was given in consideration of the adoption to Sitabai, who had given defendant No. 1 in adoption, that agreement was binding on her. The plaintiff; who claims as her heir, is also bound by the declaration; and she cannot claim any right against the defendant No. 1.
48. Even then, it was contended on behalf of the appellant that the plaintiff is the daughter of Banubai and she had half share in the property under the Hindu Succession Act; and the defendant No. 1 had another half share as the adopted son of Banubai. This argument ignores the agreement (Ex. 81) and the declaration made in Ex. 82, The learned Assistant Judge, in our opinion, rightly held that the declaration (Ex. 82) amounted to transfer of Banubai's interest; and it was a gift of all the property vested in Banubai to her adopted son. The deed was signed by the defendant No. 1 when he was aged 22; and there can be no doubt that it would operate as a gift by acceptance of the gift by him. Although, the deed was called an adoption-deed, it fulfils all the requirements ofthe gift-deed, as the document was registered and attested as required by Section 123 of the Transfer of Property Act.
49. In the result, it must be held that the learned Assistant Judge was quite right in dismissing the plaintiff's suit. The Second Appeal is, therefore, dismissed. The judgment and the decree passed by the learned Assistant Judge are confirmed, Having regard to the relations between the parties, there shall be no order as to costs.
50. Appeal dismissed.