1. Plaintiff's suit for a declaration that the adoption made by him of the Defendant-Respondent is void, having been dismissed by the lower Court and confirmed in appeal by the learned District Judge, Kolaba, he has come in second appeal.
2. The appeal does raise a somewhat important point of Hindu Law on which the authorities of this Court at least do not appear to be unanimous. The question as to whether the adoption of a boy over 15 years of age is void, or valid being sanctioned by custom, arises in this way:
The Plaintiff who had taken the defendant in adoption on 12th February 1968 and got the adoption deed registered, alleged that according to the custom in' his community adoption of a boy more than ten years of age at the date of adoption is not valid. As the defendant was 22 years of age at the date of the alleged adoption the said adoption is ipso facto bad in law and not binding on the plaintiff.
3. The short answer made by the defendant was that they are the members of Somavanshiya Kshatriya Community in Alibag Taluka which has its own association presided over by a president elected by the members of the community. At the time of adoption, permission of the President is required to be obtained and there is a long standing custom sanctioning the adoption of persons of any age.
4. The learned trial Judge framed a number of issues which in my opinion did not catch the crux. He cast the burden of proving the invalidity of Defendant's adoption on the plaintiff. In the alternative he framed a somewhat general issue as to whether the adoption is invalid under the practice of the community of the parties, probably an issue which covered the plaintiff's principal contention that the custom sanctioned adoption of boys upto the age of 10 years. Both these issues were answered in the negative. The learned District Judge formulated a somewhat omnipotent point as to whether the adoption of the Defendant was not in compliance with the provisions of the Hindu Adoption and Maintenance Act and answered it in the negative. It is this finding which is impugned before me.
5. Before I turn to the controversial questions I may at the cost of repetition refer to certain material allegations in the pleadings of the parties. The Plaintiff, for getting rid of the defendant's adoption on the ground of age, made a two-fold attack. In the first instance he pleaded that there was a custom in the community of the parties that the age of the boy should not exceed 10 years at the date of adoption. In the alternative took resort to section 10(iv) of the Hindu Adoptions and Maintenance Act, 1956 and averred further that as the defendant had completed more than 15 years of age, the adoption was void being not in compliance with law. tO rebut these averments, the defendant pleaded another custom which according to him put no upper age limit on the age of the boy to be taken in adoption and denied the custom set up by the plaintiff. It is common ground that the adoption is evidenced by a registered deed of 14th February 1968 and at the date of the adoption the boy was aged 22 years i. e. in any event, more than 15 years. Therefore, this is a case in which two apparently contrary customs are set up, the plaintiff contending that the custom sanctioned adoptions of boys below 10 and the defendant pleading that there is no upper age limit. But on the question whether the adoption is valid or void by virtue of the provisions contained in the Act, both the parties rely upon the same provisions, the interpretation of which is a matter of debate and to which I will refer shortly. Before dwelling on the questions of law, I may refer in brief to the evidence adduced by the parties for proving the alleged custom.
6. The plaintiff did not enter the box, nor did he examine any witnesses. The defendant examined three witnesses viz. Laxman Yesu Gharat, Prabhakar Surekar and Keshav Thakur. Laxman Gharat claims to be the President of Pathare Kshatriva Pachkalshi Somavanshiya Samaj. He is officiating as the President for the last seven years next before his deposition recorded in November 1969. He made a negative statement that there is no usage or custom that the boys below tea years only should be adopted. He hastened to add in the same breath that there are no restrictions ever put on the age limit of the adopted boys. He produced a number of documents filed before him by certain members of the community evidencing their respective adoptions, but those members have not stepped into the witness box. He had to concede that this practice referred to by him is nowhere recorded in the books maintained by the Samaj. The various documents referred to by him were handed over to the Secretary who was then in charge of the affairs of the association, but no register was ever maintained. Prabhakar Surekar (D. W. 2) who claims to have been adopted by one Radhabai Balkrishna in 1961, speaks to his age being 31 years at the dale of adoption and the sanction of the Samaj. His adoption deed was not registered and what was handed over lo the Samaj was an uncertified copy of an unregistered deed. The next and the last witness Keshav Thakur (D. W. 3), another member of this community, swears to his adoption by one Kashinath somewhere in 1963 and at the time of adoption he was 29. The requisite consent of the Samaj was taken. The last two witnesses do not utter a word on the custom set up by the defendant in the written statement but endeavour to speak to certain facts within their personal knowledge viz. their ages at the dates of their alleged adop tions. It is clear that the material oral evidence on record is the solitary statement of the President Laxman Gharat that there is no upper age limit for the boy to be taken in adoption. In simpler words, he says that in his community boys of any age can be taken in adoption; but while making this statement he asserts that the community never put any restriction much less to the effect that the boy should be below ten years. This statement is made to disprove the custom set up by the Plaintiff.
7. Before going to the legal aspect as-to on whom the burden should lie, and whether it has been discharged or not, I may point out that the learned District Judge has dismissed the evidence of the three witnesses on the point of custom while reversing the finding of the lower Court. He has pointed out that the numerous deeds of adoption or their copies were not at all proved and could not be read as substantive evidence. On the other hand, he has described them as good as waste papers. On the evidence of the remaining two witnesses, his observations 'are that they attempt to prove their own adoptions. This evidence, taken at its face value, is certainly too meagre and not worthy of credence to uphold the custom set up by the defendant. It is needless to repeat as to what type of evidence is necessary to uphold the custom because the law is well settled on this point. The evidence must be unequivocal and it must tend to prove that the custom is ancient, certain and reasonable, A couple of instances and that too of a comparatively recent date can by no stretch of imagination be held to be sufficient evidence to uphold the custom which aims at changing the course of law. Therefore, without dilating further, I am disposed to conclude on the evidence that the custom set up by either side is not at all proved.
8. This takes me on to the most crucial and debatable questions and to appreciate them, reference to certain provisions in the Hindu Adoptions and Maintenance Act, 1956 which governs the present case would be necessary. This Act came on the statute book on 21-12-1956, The expressions 'custom' and 'usage' have been defined in Section 3 to mean that unless the context otherwise requires, they connote 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. The expressions 'custom' and 'usage' having been defined by the statute, they have to be given this very meaning wherever they occur subsequently in the Act and more particularly in Section 10(iv) of the Act.
9. The next important section is Section 4 which reads as follows:
'4. Save as otherwise expressly provided in this Act,--
(a) any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act;'
In this context the relevant portion of Section 10 on which hinges the present case needs reproduction and it would read thus:
'10. No person shall be capable of being taken in adoption unless the following conditions are fulfilled, namely:--
X X X X X X X X X X X X X X (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.'
10. Two more important sections in this context need a reference. Section 5 lays down that adoptions under the Act are to be regulated by the provisions contained in Chapter II which has the caption 'Adoption.' Section 5(1) runs thus:
'5. (1) No adoption shall be made after the commencement of this Act by or to a Hindu except in accordance with the provisions contained in this Chapter, and any adoption made in contravention of the said provisions shall be void.'
Section 6 which prescribes the requisites of a valid adoption reads as follows:
'6. No adoption shall be valid unless:--
X X X X X X X X X X X X X X (iii) the person adopted is capable of being taken in adoption; and
(iv) the adoption is made in compliance with the other conditions mentioned in this chapter.'
It is needless to refer to the other provisions contained in this Chapter, but in passing I 'may add that Section 7 deals with the capacity of a male Hindu to take in adoption, whereas Section 8 speaks of the capacity of a female Hindu to take in adoption. Section 9 deals with persons capable of giving in adoption and to Section 10 a reference is already made. Section 11 lays down other conditions for a valid adoption, but they are of little moment in the present litigation.
11. On a combined reading of Sections 5, 6 and 10 it would be clear that an adoption which is not in strict compliance with the provisions of law will be void and 'no alternative is left. Section 10 defines the persons capable of being taken in adoption and one of the restrictions imposed is on the age limit. If the boy has completed the age of 15 years, the adoption is not recognised by the Act and it is rendered void subject to the proviso. The proviso is the existence oi a custom or usage applicable to the parties permitting adoption of boys more than 15 years of age. Going back to the facts for a while, I may point out that the defendant being admittedly more than 15 years of age at the time of adoption, the adoption would be ex facie void.
12. However, Mr. Thosar, the learned advocate for the Defendant who argued the matter at great length, tried to bring his case within the four corners of the proviso or exception to sub-section (iv) of Section 10 by laying great emphasis on the custom or usage which according to him is proved by the evidence on record alluded to in the foregoing paragraphs. I have already concluded that the said evidence as a matter of fact has failed him and the learned trial Judge has answered this point against the defendant-respondent. But Mr. Thosar tried to get rid of this difficulty by falling back upon certain observations in the reported cases to which a reference would be made shortly and impressing upon this Court that this custom, so far as the erstwhile Bombay State, which is now a part of Maharashtra State and in which the old Hindu law on adoption prevailed, is concerned, is recognised and has hardened into a rule of law. A judicial note be taken of the custom allowing adoption of boys more than 15 years in age or putting no upper age limit on the ages of the boys to be given in adoption and he need not be called upon to prove the custom once again. Even if the oral evidence is read against him and it fails to establish the alleged custom, still the precedents of this Court can be taken into account and on the issue of custom and/or usage the point can be in his favour. In support of his submission he relied upon certain observations of Nain J. in Dnyanu Gopal Powar v. Jijaba Baba Powar, : AIR1972Bom98 correctness of which is doubted by the Division Bench of this Court in Laxman Ganpati v. Anusuyabai, : AIR1976Bom264 . In Dnyanu's case the widow who had inherited her husband's properties, had sold them in 1942 and 1943 to the defendants. In 1959 she adopted the plaintiff as a son to her husband and died thereafter. The plaintiff brought a suit against the defendants for possession of the properties on the ground that the alienations made by the widow were without legal necessity. Numerous contentions were taken and one of the points raised was that the age of the adopted on was more than 15 years at the dale of adoption; therefore, the adoption was not valid. While repelling this attack Nain J, observed thus:
'.....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 Satgra 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 of 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 law prevailing in these territories permitting adoption of males over the age of 15 years is expressly saved by Section 10(iv).'
With respects, the learned Judge in the concluding two sentences uses the two expressions 'custom' or 'rule of Hindu law.' The exception embodied in Section 10(iv) is the custom. Section 10 makes no reference whatsoever to the rule of Hindu taw. On the other hand, it appears that the provisions of Section 4 were not brought to the notice of the learned Judge.
13. Now, going back to Section 4 which speaks of the overriding effect of the Act, it is clear that all the texts, rules or Interpretation of Hindu law or customs or usages seem to have no effect with respect to any matter for which provision is made in the Act. When we read Section 4 with Section 10, the only interpretation admissible is that if any text or rule or interpretation of Hindu law permitted adoption of boys over 15 years in age, they will not have any effect unless a specific provision wag made in any other section of the Act recognising them or giving them the old sanctity. In other Words, if any such old text, rule or interpretation of Hindu law (meaning thereby old Hindu law as it stood before the Act) permitted adoptions of boys more than 15 years in age, they could not stand sanctioned by the new Act unless there was express provision in the Act itself.
14. Now, adverting to Section 10, no doubt there is an express provision, but it is with respect to custom or usage which has been defined in Section 3 and to which a reference is already made. What Sub-section (iv) of Section 10 says is that adoptions' of boys over 15 years of age are not recognised by law unless there is a custom or usage applicable to the parties permitting such adoptions. If the parties succeed in establishing the custom or usage sanctioning such adoptions Of boys more than 15 years of age, then only they could be deemed to be person: capable of being taken in adoption within the meaning of Section 10. Section 10, to my mind, restricts the cases of boys in whose community there is such a custom. If adoption of boys more than 15 years in age is recognised by any text or rule or interpretation of Hindu law and not by custom, there being no express provision in the Act, the said text, rule and interpretation having ceased to have effect, cannot run to the rescue of the defend ant-respondent. In other words, if such sanction of taking boys of more than 15 years of age in adoption is to be found in the old text, rule or interpretation of Hindu law, then the exception to Sub-section (iv) of Section 10 would be of little moment to the defendant-respondent. Therefore, it is quite essential to find out how and why and under what authority this restriction of the age limit under the old law came to be imposed. Before touching this subject, I may mention here that the parties to this litigation claim to be Somavanshiya Kshatriyas which could be put in the category of 'Regenerate class' (Dwija Class) recognised by the old Hindu law.
15. Now, going to the old Hindu law as it stood before this Act wag brought on the statute book, there was a limitation on age. This limitation had its origin in the text of the law which was interpreted, so far as Bombay State was concerned, in a different manner looking upon it as a text which was recommendatory in its nature and not mandatory. It appears from the commentaries on pages 234, 235 and 236 of Mayne's Hindu Law, 1053 edn. that a boy whose upanayana or thread ceremony was not performed, could be taken in adoption and that is how the restriction on the age limit came in. The original text is to be found in Dattaka Mimamsa, Vol. IV Section 23, Colebrooke, Dig. II p. 301. The learned author has further observed that upanayana is performed in cases of Brahmins as early as the 5th year and carried upto the 8th. In a given case it may be extended to 16th year. But the next important observation is: 'The primary periods for upanayana in the case of a Kshatriya are eleven, and of a Vaisya twelve years. According to Dattaka Chandrika the age of the- boy to be adopted is only material as determining Lhe time at which upanayana may be performed. Unless it was performed in the family of the adopter, the boy could not be given in adoption so far as the other provinces except Bombay are concerned. On quoting Nilakantha and the opinions of Shastris from Poona who appear to have opined that there is nothing in the text that the adoption should precede moonj (Upanayan) and marriage, it is further observed by the learned commentator:
'It has been held by the Bombay High Court that a man can adopt a son older than himself on the ground that the rule as to age is only recommendalory. But the learned Judges themselves admit that 'it is contrary to the recognised notions of Hindus as to adoptions and to the fundamental idea of an adopted son. (vide Balabai v. Mahadu ILR 48 Bom 387: AIR 1924 Bom 349.'
A survey of these observations, to my mind, indicates that the restrictions on the age of the boy at the date of adoption did find place in the original text, but the restrictions were interpreted to be recommendatory. However, it cannot be said that they had no foundations either in the text or rule of law.
16. Reference to certain observations in the decided cases of our High Court under the old Hindu law and on a couple of which Mr. Thosar himself relied, would be necessary. The oldest case is of Nalhaji v. Hari reported in (1871) 8 Bom HCR 67. The principal question involved in that case was whether the adoption of a shudra who is married at the time of his adoption is valid or not if the adopted person be a 'Sagotra' (of the same family) of the present type. However, from the observations made by the learned advocate appearing for the appellant who sponsored the view, that the adoption of a married person is invalid under the Hindu Law, it seems that he relied upon certain texts like Dattaka Chandrika Section II, para 25 (b), T. L. Strange's Manual of Hindu Law para 104, page 27 and other compilations of English authors, He drew the attention of the Court to certain passages not only from Dattaka Chandrika, but from Dattaka Mimamsa. Reference was also made to Nilakantha's quotations referred to in one of the texts in which he said: 'And my father has said that a married man, who has even had a son born, may become an adopted son.' But the learned advocate commented further that Nilakantha's father was not a 'rishi' and his opinion was not authoritative. Naturally Mr. Gadgil appearing for the Respondent referred to certain portions in Mayukha and also passages from Kalika Puran. Why I am referring to these notes of arguments is to point out and to place on record that the restrictions on the age had their foundations in the old texts. It is not a restriction brought into existence by customs or conventions. His Lordship Melvill J. after dealing with these passages appearing in the various texts has pointed out that the authority of the Dattaka Chandrika, as regards Brahmans, is absolute and that an adoption is necessarily invalid if made after the Upanayana has been performed in the natural family. On the other hand, the author of the Vyavahara Mayukha seems to have taken an opposite view; but the commentators on Mayukha also were relying upon the statement made by Nilakantha referred to a little earlier. It is needless to make a reference to the further observations in this context as to on what grounds the argument was accepted or not, but next comes an important observation which has been relied upon by Mr. Thosar and it runs thus:
'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. Thosar wants me to read in these observations that the custom having recognised such adoptions, he is relieved of the burden of proving the custom and this custom should prevail over the other barriers of law. Ultimately the Court concluded that the adoption of a married Shudra was valid. However, this authority lends support to the view that me restrictions on the age limit had their origin in the texts.
17. The next authority nearer to the point is to be found in the case of Gopal Balkrishna v. Vishnu Raghunath ilr(1899) Bom 250. The learned Bench of which Mr. Justice Ranade was a party, observed that the fact that an adopted son is older than the adopting mother does not make his adoption invalid. The rule prescribing a difference of age in favour of the adopting mother is only directory and not mandatory. The principal point involved in the appeal was the effect of the adoption on the vesting and divesting of the estate. While challenging the adoption a point was raised whether a person who is older than the person taking him in adoption is valid or not. It was an adoption by a widow and the boy was older than the widow. In that context arguments were advanced, but his Lordship Ranade J. in the concluding paragraph observed; 'It is not strictly necessary to discuss the validity of the other objection arising out of the difference of age between his adopting mother and the appellant,' The learned Judge then proceeded to point out the objections and the pertinent observations run thus:
'The original authorities referred to by these text-writers are the same, being collected from Steele's Hindu Law and Customs, and the opinions of Shastris. As regards the earlier Smriti texts, there seems to be no definite rule laid down on the point. The inference in favour of the adopted son being younger than his adoptive father, is extended to the mother by a somewhat loose analogy and interpretation of the text that the adopted son should be the relation of a legitimate son. But in a system of law where bachelors and widowers are permitted to adopt, and where minors also can adopt, if they have arrived at the age of discretion, and where further married men with children have been held to be fit subjects for adoption, these strict interpretations of the old texts seem to be not a little out of place. ..... If a male person at any time of life may adopt a man of any age, and such male person is also permitted to marry a female minor of any age, it is obvious that the rule prescribing a difference of age in favour of the adopting mother must be only regarded as a directory rule, and not a command, the infraction of which invalidates the adoption. As observed above, it is not necessary to decide this point in the present appeal.'
True it is that these observations of the learned Judge are obiter, but they make a reference to the Smriti texts and the texts lay down these restrictions on the age. They have been interpreted by this Court to be directory in their nature and not mandatory. Even then the position under the old Hindu Law remains that there were bans on the age limit in the texts and in course of time they came to be interpreted in the manner above said and validated adoptions of persons who were either married or older than the adopter himself. In other words, the ban on the age limit found in the texts, was relaxed not on the ground of custom but on the interpretation.
18. The next authority is to be found in the case of Dharma Dagu v. Ramkrishna Chimnaji ilr(1886) Bom 80. The precise issue was whether the adoption of a married Asagotra Brahman was prohibited by the Hindu law in force in the Presidency of Bombay. The point was answered in the negative, but the principal reasoning which weighed with the Court was the doctrine of factum valet. Speaking for the Court, His Lordship Birdwood J. observed;
'Where a rule is in effect directory only, an adoption contrary to it, however blamable, is nevertheless, to every legal purpose, good.'
This authority takes a survey of the entire old case law laying emphasis or stress on the quotations dealing with the validity of the adoption of married persons; but what is pointed out is the existence of certain provisions in the old law defining the age limit for adoption.
19. More or less to the same effect are the observations in Balabai Tukaram Balur v. Mahadu Krishna Balur ILR 48 Bom 387: AIR 1924 Bom 349. In this case the question for decision was whether it is permissible to a person to adopt a son older than himself and it was answered in the affirmative. The reasoning for taking such a view is to be found in the penultimate paragraph of the judgment. On observing that no express text directly bearing on the point was cited at the bar. His Lordship Macleod C. J. speaking for the Bench observed that the directives given in the old text have been treated as recommendatory and not mandatory.
20. My learned brother Malvankar J, in an unreported case Second Appeal No. 1444 of 1965 decided on 24-4-1972 (Bom) has catalogued various judgments on this point to which a passing reference is made by the division bench of this Court in Laxman Ganpati Khot v. Anu-suyabai, : AIR1976Bom264 . Three principal questions were raised before the Division Bench, and they are: (1) whether, in view of the provisions of Ss. 4 and 10(iv) read with Section 3(a) of the Hindu Adoptions and Maintenance Act, 1956, it is open to the first defendant to prove that there was a custom or usage applicable to the parties which permitted persons who were over the age of 15 to be taken in adoption; (2) whether any such custom or usage has been proved in the present case; and (3) whether the first defendant has succeeded in proving the factum of the adoption on which he relies. The learned Judges dealt with the third point first and came to the conclusion that the factum was not established. On observing that it was not necessary for them to express on the remaining two points still as the point was urged at great length, they proceeded to give their own views. Their attention was drawn to the judgment in Dnyanu Gopal v. Jijaba Baba, : AIR1972Bom98 decided by Nain J. The division bench, in my opinoin, has rightly pointed out that the attention of the learned Judge Nain was not drawn to the provisions of Section 4 of the Act. The learned Judges seem to take the view that if the adoption of a person over the age of 15 years was permissible under any text, rule or interpretation of Hindu Law before the Act came into force, and not in accordance with any custom, then the same could not be allowed to be proved, in view of the provisions of the said sections viz. Sections 4, 6 and 10. These observations, to my mind, clinch the issue. As I have already indicated in the foregoing paragraphs that the restrictions on the age of the boy to be given in adoption could be traced to the original text and the relaxation owes its origin to their interpretations as put by this Court in the various authorities. Although the texts or rules were liberally interpreted, upholding the adoptions of persons older than the adopter or removing the ban on the age of the boy to be adopted, still the basic question remains and it is that such adoptions were upheld not because of the proof of custom but because of the interpretation put on the lexis. If this be the correct position of law, and it is, to my mind,-then Section 4 read with Section 10(iv) is a complete answer to the numerous points raised by Mr. Thosar before me. Section 4 overrides all the provisions in the old texts, rules or interpretations of Hindu law. They are not saved by Section 10(iv). What is saved by Section 10(iv) of the Act is the custom which permits the adoption of a boy who has completed the age of 15 years. Therefore, the question of custom, to my mind, as I read these sections and the origin of these restrictions, recedes to the background. In view of the overriding effect of Section 4, a party cannot be allowed to prove that adoption of a person over the age of fifteen years was permissible. On these grounds I am disposed to set aside the decree of the lower Court.
21. In this view of the matter I take, it is needless, nay, it would be futile to deal with the various other points urged at considerable length by Mr, Thosar.
22. In the result, the appeal is allowed with costs throughout. The plaintiff's claim is decreed by declaring that defendant's adoption is null and void as he was more than 15 years of age at the date of adoption.
23. Appeal allowed.