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Laxman Ganpati Khot and ors. Vs. Anusyabai and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtMumbai High Court
Decided On
Case NumberA.F.O.D. No. 285 of 1970 and Civil Appln. No. 729 of 1975
Judge
Reported inAIR1976Bom264; 1977MhLJ68
ActsEvidence Act, 1972 - Sections 101 and 104; Hindu Adoptions and Maintenance Act, 1956 - Sections 10; Evidence Act, 1872 - Sections 62, 63, 65 and 68
AppellantLaxman Ganpati Khot and ors.
RespondentAnusyabai and anr.
Appellant AdvocateK.J. Abhyanar and ;R.S. More, Advs.
Respondent AdvocateV.T. Walawalkar and ;R.T. Walawalkar, Advs.
Excerpt:
a) the court ruled that since adoption displaces the normal order of succession, the courts must insist upon strict and even severe standards of proof - the evidence by which the adoption was sought to be proved, must be beyond suspicion and of unimpeachable character.;b) the case debated on admissibility of photographic negative and enlarged print as evidence within the framework of section 62 of the evidence act, 1872 - it was held that the person taking the photograph and developing it into a negative had to deposit the same for the negative to become admissible in evidence - it was further held that enlarged print could not be admitted in evidence without its negative being produced at the same time ;c) the case questioned as in whether the secondary evidence under section 65 of the.....vimadalal, j. 1. this is an appeal filed by original defendants nos. 1, 2 and 3 against the order of the civil judge, senior division sangli, passing a decree for possession in favour of the plaintiff who is the first respondent before us. the facts necessary for the purpose of disposing of this appeal are, that the first defendant, who is the son of the second defendant, was born on the 18th of october 1940. the date of birth of the first defendant has not been produced in the trial court. the plaintiff is the widow of one anna who was the brother of the second defendant and, therefore, the paternal uncle of the first defendant. the first defendant claims to have been adopted by the said anna, who had no children, on the 25th of january 1959 when, according to the first defendant claims.....
Judgment:

Vimadalal, J.

1. This is an appeal filed by original defendants Nos. 1, 2 and 3 against the order of the Civil Judge, Senior Division Sangli, passing a decree for possession in favour of the plaintiff who is the first respondent before us. The facts necessary for the purpose of disposing of this appeal are, that the first defendant, who is the son of the second defendant, was born on the 18th of October 1940. The date of birth of the first defendant has not been produced in the trial Court. The plaintiff is the widow of one Anna who was the brother of the second defendant and, therefore, the paternal uncle of the first defendant. The first defendant claims to have been adopted by the said Anna, who had no children, on the 25th of January 1959 when, according to the first defendant claims to have been adopted by the said Anna, who had no children, on the 25th of January 1959 when, according to the first defendant, the necessary adoption ceremony was performed in the presence of several persons, and an Adoption Yadi was also prepared and executed. Anna died on the 13th of July 1961, and it is the case of the first defendant that he had thereafter enjoyed exclusively the properties of Anna. It is also the case of the first defendant that on the 6th of October 1961, which would be less than three months after the death of Anna, a Deed of Consent Ex. 94 was executed and registered by the plaintiff at Miraj. ON the 20th of January 1962 and on the 2nd of May 1962 mutations were effected in the revenue records which are Exs. 97 and 98 in the proceedings in the trial Court, whereby all the immovable properties left by Anna were transferred in those records to the name of the first defendant as his adopted son. It may be mentioned that two separate mutations were effected because the immovable properties of the said Anna were situated in two different villages, viz., in the village of Walva and Bavachi. It may also be mentioned that, though the mutations entries themselves have been produced, the original applications in consequence of which those entries were effected in the revenue records have not been produced.

2. According to the plaintiff, the first defendant's claim to be the adopted son of Anna is entirely false as no such adoption had ever taken place. The plaintiff's case further is that she being an illiterate lady, shortly after the death of Anna she was taken to Miraj, ostensibly for medical treatment, where her thumb mark was obtained on some document which it now turns out was the Deed of Consent. The first defendant having, according to the plaintiff, wrongfully taken possession of all the immovable properties of the deceased Anna situated in the Villages of Bavachi as well as Walva, she had to file the present suit, which she did on the 28th of November 1968.

3. On these facts, the parties went to trial in the lower Court in which all the issues framed by the learned trial Judge were answered in favour of the plaintiff as against defendant No. 1. It may be mentioned that, of the other parties to the suit, the second defendant is the father of the first defendant, whereas the third defendant is the brother of the first defendant to whom the first defendant had purported to rent out some of the lands belonging to the deceased. It may also be mentioned that the 4th defendant to the suit is a Co-operative Bank from which a loan was taken by the first defendant on the security of some of the lands of the deceased Anna, but it is not disputed that the said mortgage debt has been satisfied. The Trial Court has dismissed the plaintiff's suit as against the 4th defendant Bank, and I do not think it necessary to deal with the same, since no appeal from the order of dismissal is before us.

4. Three questions really arise in this appeal and have been argued before us, and they are, (1) whether, in view of the provisions of Section 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 permute 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 factotum of the adoption on which he relies. IN the view which I take on the third question relating to the factotum of the adoption, it is not really necessary for me to decide the first two questions, but I will briefly indicate at the end of this judgment my views in regard to the same. I will, therefore, proceed to consider the evidence, oral as well as documentary, which as been led in the trial Court to prove the factotum of the alleged adoption of the first defendant by the deceased Anna on the 25th of January 1959. There can be no doubt that the onus of proving the factotum of the adoption is on the first defendant who relies on it, but before I proceed to discuss the evidence relating to the same, I would prefer to refer to three decisions of the Privy Council in regard to the extent of the onus. In the case of Dal Bahadur v. Bijai Bahadur AIR 193 PC 79 the question was really one of proving whether or not authority had been conferred upon two widow to adopt. In dealing with the question of the extent of onus, Lord Buckmaster laid down the legal position in the following terms (at page 81 Cols. 1-2):---

'Their Lordships' Board think it would be impossible to rely on this piece of evidence and this piece of evidence alone for the purpose of satisfying the very Greg and serious muss that rests upon any person who seeks to displace the natural succession of property by the act of an adoption. In such a case the proof requires strict and almost severe scrutiny, and the longer the time goes back from the date when the power was given to the time when it comes to be examined, the more necessary it is, having regard to the fallibility of human memory and the uncertainty of evidence given after the lapse of such time, to see that the evidence is sufficient and strong.' As the Privy Council was unable to find that the evidence before them was sufficient for the purpose, they allowed the appeal and restored the decree of the subordinate Judge holding that the adoption was not proved. In the case of Padmalav v. Fakira Debya, , following earlier decisions of its own, the Privy Council took the view (at page 87, Col. 1) that proof of the adoption must be free from all suspicion of fraud and so consistent and probable as to leave no occasion for doubt of its truth, and the evidence in support of the same should be of 'unimpeachable character.' In that connection, their Lordships further observed (page 88, Col. 1) that even an admission made by the plaintiff during her widowhood while she was entirely in the power of her husband's relations, would necessarily carry much less weight than if made at an earlier period. Dealing then with a clause in the compromise arrived at between the parties under which the widow completely renounced her claim to succeed to her husband's estate, their Lordships of the Privy Council stated 9at page 88-89) that the same, far from dispersing the clouds of suspicion resting upon both the adoptions in question was calculated to darken them, and concluded their judgment by stating the both the adoptions in question before them were most improbable in themselves and were 'not supported by the contemporaneous evidence which ought to have been forthcoming. 'The Privy Council, therefore, confirmed the judgment of the High Court holding that the adoptions were not proved. In the case of Muthuswami v. Chidambara where also the question of the factum of the adoption was in dispute, though there was an alleged adoption deed on which reliance was placed in support of the adoption, the Privy Council held the adoption to be not proved, observing as follows (Para 8):---

' All the witnesses seem to have been friends or relations of the parties and there is no corroboration of their testimony such as is often found in cases of disputed adoption. NO priest or local official who might be regarded as disinterested was called; no cards of invitation to the ceremony were produced, and there was no photograph of the ceremony. The direct evidence in support of the ceremony was therefore weak . . . . . . . . . . . . . . '

From these judgment of the highest Court, it is therefore, clear that since adoption displaces the normal order of successions, Courts must insist upon strict and even severe standards of proof, and the evidence by which the adoption is sought to be proved must be beyond suspicion and of unimpeachable character.

5. It is in the light of these standards laid down by the Privy Counsel, that I must now proceed to discuss the evidence in regard to the faction of the adoption in this case. The oral evidence to prove the factum of the adoption consists only of three witness. The fairest of them is one Sadashiv Dattatraya who claims to have been present. both at the time of the adoption ceremony on the 25th of Janaury 1959at which the Adoption Yadi was also executed as well as at the time of the execution and registration of the Deed of Connect at Miraj of the 6th of October, 1961. He has stated in His examination in chief that at the time of the adoption home was performed that one priest by name Joshi was brought that a photograph was taken and that the deceased Anna smelt the bead of the first defended said that he had tacked him in adoption whilst the secant defendant sad that he had given the first deafen adoption. He has further deposed that an Adoption Yadi was prepared at the same time and that he had signed the same. It may be mentioned that the original of the alleged Adoption Ad has not been produced n the trail Court, it being the allegation of the first defendant that the same was with the plaintiff, but on ordinary hand written copy of the Adoption Yadi which was annexed to the Deed of Consent (Ex. 94) was produced in the trial Court. A photograph of the alleged Adoption Yadi was also sought to be tendered but the same has in my opinion rightly not been admitted in evidence. Turning ac to the oral testimony of Sadashiv Dattatraya n the course of His examination in chief he has deposed that he had been called by the plaintiff when she wanted to execute a Deed of Consent and that a Deed of Consent was 'Made at Miraj.' He has deposed that he attested that Deed, and he has identified His signature thereon and stated that the thumb mark on it was affixed by the plaintiff in his presence. In the course of cross-examination Sadashiv has said that no Deed of adoption was made because Anna Was ailing and the plaintiff had therefore told him that she had to execute a Consent Deed in respect of the adoption Sadashiv has stated that the plaintiff had come to Walva to call him and one other person. Sadashiv has however had to admit n the course of cross examination that there aware Sub-Registrar's offices at Islampur and Ashta which are nearer to Raktewadi where the plaintiff lived than Miraj but he has purported to explain why the plaintiff should have gone to Miraj to execute the Deed of Consent by deposing that the plaintiff had told him that she had some previous acquaintance at Miraj, and she, therefore; wanted to execute the Deed of Constant there. That statement of Sadashiv is absent there. That statement of Sadashiv is obviously false because when he was aced whether any persons of the acquaintance of the plaintiff had come to the place at Miraj where the Deed of Consent was executed, his answer was that he could not say if any such person had come there. He has stated in cross-examination that he had himself gone to the Sublimation that he had himself gone to the Sub-Registrar's office, and when questioned about the presence of the first defendant there, he stated that he had not seen Pandurang there, and that it was not rue that the Deed was presented by Pandurang before the Sub-Registrar. In the very next breath he however stated that he did not remember if Pandurang had signed it before the Sub-Registrar. It may be stated that the statement of Sadashiv that the first defendant had not presented the Consent Deed before the Sub-Registrar s palpably false because we have seen the original of the Consent Deed (Ex. 94) and it shows it was the first defendant who had presented the same. In fact, the first defendant has himself, after some prevarication, admitted in clear terms that he s a friend of the first defendant. Mr. Abhyankar sought to rely strongly on the fact the there was no cross examination directed to the actual giving and taking in adoption in regard to which Sadashiv has deposed in clear terms in his examination-in chief, but I do not think that that can be construed as leaving those facts unchallenged in cross-examination, n view of the fact that a categorical question in the form of a leading question appears to have been put to Sadashiv at the end of his cross-examination to which he as replied that it was not true that no adoption had taken place. He has also been questioned as to on how many pieces of paper the Yadi, which was contemporaneous with the alleged adoption ceremony itself, was written. There is also cross-examination in support of the suggestion of the plaintiff that the photograph, the negative of which has been produced in the present case as Ex. 62, as well as the photograph Ex. 63 were taken . at the time when Anna had come back from a pilgrimage to kashi. The evidence of Sadashiv, in my opinion, suffers from three infirmities. First and foremost, he is admittedly a friend of the first defendant. Secondly, he has been unable to explain why the alleged Deed of Consent should have been executed at a distant place like Miraj when, according to Sadashiv himself, there are other registration offices which are in closer proximity to the place where the plaintiff resided. Thirdly, and that perhaps is the most important point on which Sadashiv's testimony can be impeached; he has told a bold lie that Deed of Consent was not presented before the Sub-Registrar by the first defendant, and has even gone to the length of stating that he had not seen the first defendant there. I, therefore, do not consider Sadashiv to be a reliable witness, and in the absence of corroboration from any independent source, I am not prepared to act on his testimony.

6. The next witness examined in support of the alleged adoption is the first defendant's own natural father, the second defendant. He has stated that Anna had requested him to give the first defendant n adoption and he had agreed to do so, that he and Anna collected people and called a priest, the Home was performed and mantras chanted by the priest, and the Anna then smelt the head of the first defendant as he took the first defendant in adoption, and put sugar in his mouth. He has deposed that a photograph was then taken, and that the plaintiff herself. his own wife and villagers were present. He has further stated in his evidence that he was himself sitting there and gave the boy in adoption, whilst Anna took the boy in adoption. He has mentioned the names of Babu Govind, Lala Aba, Yashwant Daj and others as being present at the time of the adoption ceremony, and has stated that an Adoption Yadi was also made there which he and Anna signed. He has ventured to stated that the first defendant was at that time 15 years of age and was unmarried. He has purported to identify a group photograph which was shown to him, which is Ex. 63, as having been taken at the time of adoption. In the course of cross-examination, the second defendant has gone so far as to deny that Anna had gone on a pilgrimage to Kashi, a fact which Sadashiv Dattatraya has, in terms, admitted in his evidence to which I have referred. He has also been put a leading question to which he has stated in reply that it was not true that no adoption had taken place, or that the photograph which he identified was one which was taken when Anna had returned from Kashi. In regard to the age of the first defendant, he has also told a bold lie when he stated that it was not the that the first defendant was born in 1940, and has asserted that he was born in 1944. As far as the evidence of the second defendant s concerned, he has told significant lies or two material points, viz. (1) that Anna had not gone on a pilgrimage to Kashi; and (2) that the first defendant was only 15 years of age at the time of the adoption and was born in 1944. and not in 1940. As far as both these points are concerned, it is obvious that that falsehood which is intended to anticipate the case of the plaintiff, both in regard to the photograph which was produced as being that which had been taken on Anna's return from the pilgrimage to Kashi, as well as in regard to the question of age on which he seems to have been tutored. to make a statement that the first defendant was of the age of 15 so as to conform to the provisions of Section 10(iv) of the Hindu Adoptions and Maintenance Act, 1956. These are not therefore, statements which could be regarded as explicable on the ground of ignorance; or carelessness, or slip of memory. The very significance of these false statements rules out these possibilities and exposes the second defendant as a witness who has no respect for truth. It may also be noted that the second defendant has not stated anywhere in the course of his evidence that there was any custom applicable to the parties under which a person over the age of 15 could be adopted. In my opinion, the evidence of the second defendant s wholly unreliable and must be discarded altogether.

7. The only other oral evidence which has been led in this case in support of the adoption is that of the first defendant himself. The first defendant has stated in his examination-in chief that on the 25th of January 1959 Anna cad called his natural father and mother and some others from the village, that a photograph of the adoption was taken, that a plaintiff was present there, that Anna asked his natural father to given him in adoption, and his natural father gave his consent to the same, and that a 'list of adoption' was then made which was attested by a number of persons from the village, and by plaintiff, Anna, as well as his own natural father and mother. The first detain-in-chief that Anna and the plaintiff had for long been wanting to taken him in adoption and that when he was taken in adoption, he was 15 years of age which, in my opinion, is undoubtedly a lie. He has further stated in his examination-in-chief that at the time of the adoption ceremony His natural father told him that he had been given in adoption, and that Anna removed the cap from his head and smelt his head because he was to be taken by Anna in adoption, and the Home was performed and Gandhi was applied on the forehead of all. He has stated n his evidence that for four years thereafter he lived jointly with the plaintiff, and that he plaintiff, had voluntarily executed the Deed of Consent to the adoption and his name had come to be entered in the Record of Right in respect of the lands of Anna sometime in the year 1961. He has also stated that His original name was Laxman, but, on adoption, His name was changed to Pandurang, and a the end of his examination-in-chief, he has deposed that there was a custom applicable to the parts under which a boy even over the age of 18 could be taken in adoption, an answer which, in my opinion, clearly shows that he was conscious of the hollowness of his earlier statement that he was only 15 years of age. In the course of his cross-examination, the first defendant has stated that he had been educated unto 9th standard, but he could not give the year when he was born. He has stated that he had himself seen the Adoption Yadi which was written on two sheets of paper, but not on stamp paper. He has deposed that the photograph of the Adoption Yadi which has been produced (but has not been admitted n evidence) was taken sometime in the year 1962, and what s most important is that he has admitted that the Adoption Yadi' was lying in my house', which give the El to the story with which he has come out that the original of the Adoption Yadi is with the plaintiff, and that was why he could not produce the same. He has denied he suggestion put to him that no adoption ceremony had taken place. Then comes the most interesting part of His evidence in cross examination in which he states, 'I do not know as to where was executed the consent deed. I was not present when it was executed or registered', adding that he had not asked the plaintiff to execute any Deed of Consent. When the first defendant was shown his own signature below Sub-Registrar's endorsement on the Deed of Consent at the end of his cross-examination, he had, however, to admit that that signature was His own, thereby also admitting that his earlier statements that he did not known where the Deed of Consent was executed or registered and that he was not---present at the place where it was executed or registered, were blatant lies. These false statements, taken together with the significant and deliberate false statement told by him in regard to his age at the time of adoption being 15, in my opinion, completely discredit the testimony of the first defendant and it is impossible to rely on any part of tat testimony the result of this discussion of the oral evidence is that the evidence to the first defendant as well as his father the second defendant is wholly unreliable e for the reasons stated above apart from the fact that they are vitally interested in setting up the adoption. The evidence of the only other witness Sadashiv-Dattaraya also suffers from the infirmities to which I have referred above. Moreover Sadashiv Dattatraya is admittedly a friend of the first defendant. According to the first defendant, there were several other persons belonging to the village who were present at the time of the alleged adoption ceremony, but not a single independent witness has been examined. This oral evidence, therefore falls far short of satisfying he standard of proof which has been laid down by the Privy Council in the cases to which I have referred for the purpose of proving an adoption that would displace the natural order of succession. I must however, proceed to consider the documentary evidence on which the first defendant has also relied.

8. The first piece of documentary evidence to which I will refer is the negative (Ex. 62) of the group photograph alleged to have been taken at the me of the adoption ceremony, and the enlarged print (Ex. 62) which, witness Dattatraya Chavan has stated, was made from another photo print respect of which the negative s lost. As far as the --- negative (Ex. 62 ) is concerned, the same has been produced by witness Madhukar Baburao who has deposed that is father Baburao Tukaram was a photographer and died n September 1960. that he had His studio at Islampur, that defendant No. 1 had approached him with a photograph and he asked him to find out its negative (Ex. 62). In the course of cross-examination however, he has admitted that he cannot say whether or not that negative (Ex. 62). has not been duly proved and should not have been admitted in evidence. It is only when the person who takes a photograph and develops it not a negative himself comes in the box and deposes to both these facts, that a negative becomes admissible in evidence. As far was the enlarged print (Ex. 63) is concerned the position s still woes, for no print or enlargement can be admitted n evidence without its negative being produced and proved in the manner already indicated above. Moreover, the evidence of witness Dattatray Chavan does not show which was the photo print from which the photograph which has been tendered as Exhibit No. 63 was taken. In this state of the evidence n my opinion, the said enlarged photo print (Ex. 63 ) has also not been duly proved and should not have been admitted in evidence.

9. The next piece of documentary evidence on which reliance was sought to be placed was the hand-written copy oft Adoption Yadi which was annexed to the Deed of Consent (Ex. 94) and has gone in along with that document as well as a photograph of the Adoption Yadi which was sought to be tendered but was not admitted in evidence by the learned trial Judge. As far as the hand-written copy of the Adoption Yadi annexed to the Deed of Consent is concerned in my opinion, the same cannot be regarded as duly proved for several reason. First and foremost, it appears that the sad copy was allowed to be admitted in evidence as secondary evidence by reason of the allegation made by the first defendant that the original thereof was in the possession of the plaintiff so as to bring the case within clause (a) of Section 65. of the Indian Evidence Act. In my opinion, jeweller, the evidence of the first defendant himself n cross-examination to the effect that the Adoption Yadi was lying in his house when its photograph was alleged to have been taken in 1962 shows that, at any rate, till then it was in the possession of the first defendant himself. I do not believe the case sought to he made out that the plaintiff, who is an illiterate lady, took away several documents, including this Adoption Yadi, when she went away from the house of the first defendant some time in the year 1966. In that view of the matter, the preliminary fact that the original of the AdoptionYadi is in the possession of the plaintiff cannot be said to have been proved so as to make secondary evidence admissible under clause (a) of Section 65. The matter, however, does not rest there. Mr. Abhyankar has not shown to us any evidence on record which would make the hand-written copy of the Adoption Yadi annexed to the Deed of Consent secondary evidence with in the terms of any of the clauses of S.63 of the Indian Evidence Act. He has not pointed out any --- evidence which, would show as to who made that copy, is whose hand writing it is, from what it was made, or whether it was compared with the original. On that ground also, therefore, he hand-written copy of the Adoption Yadi annexed to the Deed Consent is inadmissible in evidence and must be disregarded altogether. Moreover, the evidence led on behalf of the first defendant in regard to the same is inherently improbable, for f the plaintiff was a willing party to the execution and registration of the said Deed of Consent at Miraj, as the first defendant alleges, there is no reason why the original of the Adoption Yadi itself, assuming that it was n the possession of the plaintiff, as the first defendant alleges should not have been annexed to the Deed of Consent. There is also no evidence regard to proof of handwriting of the person who wrote out that coop of the Adoption Yadi. As far as the photograph of the Adoption Yadi is concerned the same has in my opinion, rightly have been excluded from evidence, for as already stated above, the print of the enlargement of the photograph cannot be admitted in evidence n the absence of a negative and in absence of evidence being led to prove the identify of the document of which a photograph was made. In the case of this photograph, the negative is stated by witness Dattatraya Chavan to have been lost and, under those circumstances, in my opinion, the said photograph of the alleged Adoption Yadi has been rightly excluded from evidence by the learned trial judge.

10. The third piece of documentary evidence s the Deed of Consent (Ex. 94) itself. First and foremost, there was no occasion for the execution of the said Deed of consent within less than three months after the death of Anna as, at that me, admittedly the relations between the parties were cordial. The reason which witness Sadashiv Dattatraya has given for the said Deed of Consent hand been executed was that t was prepared because MP Deed of Adoption has been made on account of the sickness of Anna. That reason, apart from its being unconvincing , it self casts a shadow on the very existence of the Adoption Yadi itself since, according to Sadashiv Dattatrya no Deed of Adoption was prepared at the time of the adoption. There is also no reason why if as the said witness Sadashv Dattatraya himself has deposed, there were nearer registration offices at Islampur and Ashta, the documents should have been executed and registered at Miraj This in my opinion is also a circumstance which makes the whole transaction relating to the alleged execution of the said Deed of Consent highly suspicions. The reason given by Sadashiv Dattatraya that the plaintiff had said that should prefer to have it executed and registered at Miraj Because she knew some people there is also false, as already pointed out above, because Sadashiv Dattatraya was not able to say whether any person of her acquaintance had come to the place where the said Deed of Consent was executed and registered at Miraj, and indeed no acquaintances of the plaintiff at Miraj had been called to witness the said Deed which one would expect to have been done , if she really had any acquaintances there. There is also intrinsic evidences in the said Deed of Consent Ex. 94 to show that it was not a genuine document insofar as, as in the case of Padmalav v. Fakira Debya already cited above n another context it is inherently improbable that he plaintiff would renounce her claim to succeed to a one half share n her husband's estate. t may in that connection. be pointed out that it is stated in the said Deed of Consent (Ex. 94) that the first defendant had become the full owner of all the movable and immovable properties of the deceased. Apart from all the evidence which makes the authenticity of the said Deed of Consent highly suspicions and renders the plaintiff evidence in that behalf provable this document has also not been proved him in accordance with law insofar as no evidence has been led to prove the handwriting of the person who wrote it. The plaintiff has in her evidence deposed that no adoption ceremony had ever taken place , that Anna had never tacked the first defendant in adoption and that whilst she was ailing shortly after her husband's death. defendants Nos. 1 and 3 had taken her to Miraj ostensibly for treatment but had stopped near a tree and obtained her thumb mark on blank piece of paper she has categorically asserted that she had never executed any Deed of Consent. For the reasons stated above in my opinion, this evidence of the plaintiff appears to be true, act I told that the said Deed of Consent is neither genuine for duly proved as required by law and should not even have been admitted in evidence in the absence of such proof.

11. The only other documentary evidence reeled upon in support of the case of the adoption consists of the mutation entries Exs. 97 and 98, but in view of the admitted illiteracy of the plaintiff and in the absence of the application more sequence of which those mutations were effected, n my opinion, these mutation entries cannot be of any avail to the first defendant for the purpose of proving the adoption on which he relies. Moreover, though it has been put to the plaintiff in the course of cross -- examination that it was she who had made the application for making the said mutation entries, the first defendant has not ventured to make any such statement in his own evidence. I, therefore, do not attach any importance to these mutation entries as proof of the adoption for the first defendant by Anna. In the result, I hold that the evidence, oral as well as documentary, that has been led on behalf of the first defendant in the present case s unreliable and suffers from the several infirmities pointed out above and cannot help the first defendant , to prove that the deceased Anna had adopted him as his son. Moreover, as already stated above, though according to the first defendant, several independent persons were present at the time and place of the adoption ceremony, and indeed, as manes 20 persons signatures are appended to the coupe of the Adoption Yadi Which is annexed to the deed of Consent (Ex. 94), not a single independent witness has been examined to prove the adoption.

12. In that view of the matter, as already stated above, it is not necessary for me to deal in detail with the question as to whether, in view of the provisions of Sections 4 and 10(iv) read with Section 3(a) of the Hindu Adoptions And Maintenance Act, it was open to the first defendant to prove that there was a custom applicable to the parts which permitted persons over the age of 15 to be taken in adoption. Since the point has been argued, I may, however, briefly express my own views in regard to that question. In the case of Dnyanu Gopal v. Jijaba Baba : AIR1972Bom98 , Nain J. has taken the view at page 668 of Bom LR = (at p. 99 of AIR ) that the prohibition contained in section 10(iv) against the person adopted who has completed the ago of 15 years has no meaning in relation to male persons adopted in the territories which were comprised in the former State of Bombay , and that the custom ' or rule of Hindu Law' prevailing in those territories permitting adoption of males over the age of 15 years is expressly saved by Section 10(iv). I do not approve of the view taken by Nain .J. in so far as he holds that not merely a custom but even a rule of Hindu law prevailing in those territories would be expressly saved by section 10(iv). That view appears to have been taken by him because the provisions of Section 4 of ht Hindu Adoption and Maintenance Act, 1956, were not brought to His notice. The question was exhaustively considered by Malavankar J. in his judgment D/- 24-4-1972 in Second Appeal No. 1444 of 1965 (Bom) where he reviewed a large number of authorities. The view taken by him was that it was clear that in spite of the provision of Section 6(iii) and Section 4(a), of the Hindu Adoptions and Maintenance Act, 1956, if a custom applicable to the parties is proved which permits persons who have completed the age of 15 years being taken in adoption, then such a custom is saved in view of the provisions of Section 4(a) read with Section 10(iv) of the Act. It was fairly conceded before him that if the adoption of a persons over the age of 15 years of age 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, n view of the provisions of the said sections. In my opinion, the position as laid down by Malavankar. J. in his judgment in the said case, to the extent stated above and us conceded before him by the learned advocated for the appellant is the correct position n law as it now stands in the said case the same contention was advanced by the learned advocate for the appellant before us by Mr. Abhyankar vz that there being a relies of decisions of this Court recognising the custom permuting persons more than 15 years old being taken n adoption, it has not necessary to plead the custom specifically, much less to lead any evidences to prove the same. Malvankar J., therefore, proceeded to examine all the decisions which were pointed out to him in proof of that custom. I do not propose to embark on that task. Suffice it to say, that the correct position in regard to the proof of custom by means of decided cases is to be found from the decision of the Privy Council in the case of Kesarbai v. Indarsingh 71 Ind App 190, at p. 196 = (AR 1945 PC 16 at p. 18) in which opted by the High Court to regard an earlier decision of the Privy Council as showing that the custom in question before it did prevail among certain members of the caste in the province from which the parties originally came, and 'That t was, therefore, reasonable and of long standing, and to that extent t also afforded corroboration of the evidence of the respondents witnesses as showing that the custom to which they deposed was known and practised by other members of their community n a different part of India. ' It has however, been lad down by the Supreme Court in the case of Munnalal v. Rajkumar , : AIR1962SC1493 that it is well - settled that 'Where a custom is repeatedly brought to the notice of the Courts of A Country, the courts may hold that custom introduced into the law without the necessity of proof n each individuals case.' The position, therefore is that where the custom in question has been repeatedly recognised by Courts of law, the Court may, n another case, hold that custom as proved without the necessity of independents proof in that case, but even where the a case, but even where the case law relied upon falls short of that, a judicial decision in which such a custom has been recognised can certainly be regarded as affording corroboration of the evidence of the witness who have deposed to the same in another case.

13. As far s the decisions cited before us in the course of the hearing of this appeal are concerned, in the view which I have taken on the on the question of the factum of the adoption , I do not propose to deal with the same in detail. Suffice it to say , that those decisions cannot be held to recognise in clear and unambiguous terms the custom which the first defendant was called upon to prove in the present case, viz. that in this part of the country an adoption of a person over the age of 15 in valid. It is too well settled to need authority that proof of such custom must be established inductively and furnished by evidence which is clear and unambiguous. It is also well settled that one custom cannot be deducted from another. Custom cannot also be extended by analogy or enlarged by parity of reasoning. As afar as the evidence led in this very case is concerned the same consists only two instances of adoption to which witnesses Ananda and Sadashiv Ramachandra have deposed, but Ananda does not now of any instance of such adoption except his own, and Sadashiv has spooked oh having only ' heard' of one other instance of that nature during the last 14 years, a statement which should not have been admitted in evidence as being in the nature of hearsay. Moreover the documents which each of them has produced, though registered have not been duly proved as required by law. The provision to Section 68 of the Evidence Act only dispenses with the calling of an attesting witness in proof of the execution of the document which is required by law to be attested and has been registered unless its execution is specifically denied by the other side. The handwriting on a document even if it be registered, must however be proved in according with the provisions of that Act, and that has not been done in the present case. Though the execution of the documents has been proved the handwriting of the person who wrote out the body of those documents has not been proved as required by law. In any event, apart from these infirmities attaching to the evidence of Ananda and Sedative Ramachandra the evidence of these two witness n regard to there own respective adoption at an age exceeding 15, s, in my opinion, wholly insufficient to prove a custom of the nature of that which the first defendant is required to prove by evidence so slender and so scanty. The position therefore, s that if on the factum of adoption I am wrong, I would take the view that the custom of adopting a person over the age of 15 in this part of the country has not been proved in the present case.

14. As far as Civil Application No. 729 of 1975 is concerned, the same has not really been pressed before us by Mr. Abhyankar, and , in any event, does not survive.

Nak, J.

15. I agree and have nothing to add.

BY THE COURT

16. The appeal is dismissed with costs, and the order and decree passed by lower Court confirmed. The stay granted will stand vacated. No order on the Civil Application and no order as to its costs.

17. Appeal dismissed.


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