P.V. Dixit, J.
1. The plaintiff-appellant's suit for a declaration that he is the validly adopted son of one Bhera and for an injunction restraining the defendant Bhuribai, the widow of Bhura, from interfering with the plaintiff's possession and enjoyment of the property left by Bhura has been dismissed by the Courts below. His case was that on 31st January, 1951 he was validly given in adoption according to custom and law by his brother to Bhuribai, the widow of Bhura; that the adoption was performed with due rites and ceremonies; that at the time of adoption the defendant Bhuribai executed a deed of adoption also; that after the adoption he became the adopted son of Bhura and as such took possession of Bhura's property and began living with his adoptive mother Bhuribai; that Bhuribai was now denying that the plaintiff had been adopted by her and had let out some houses belonging to Bhura without the plaintiff's consent; and that, therefore, he was compelled to institute the suit praying for a declaration of his status as an adopted son of Bhura and for an injunction restraining Bhuribai from interfering with his possession and enjoyment of the property of Bhura.
2. The defendant Bhuribai contested the suit on the grounds that she had never adopted the plaintiff; that as he was an orphan he could not in law be adopted; and that she never executed any deed of adoption.
3. The trial judge dismissed the plaintiff's suit holding that he had failed to establish that in the community to which the parties belong the adoption of an orphan was permissible and valid. He expressed no opinion as to whether there was an adoption ceremony on 31st January, 1951 and whether Bhuribai executed a deed of adoption. The learned Additional District Judge of Dewas, who heard the appeal preferred by the plaintiff against the judgment and decree of the trial court, agreed with the decision of the trial court and dismissed the appeal.
4. Two questions arise for determination in this appeal, namely, whether there was an adoption ceremony on 31st January, 1951 in which the plaintiff's brother gave him in adoption to Bhuribai and secondly whether the adoption of the plaintiff, who was admittedly an orphan on 31st January, 1951, was valid according to any custom of the Khati community to which the parties belong. That there was an adoption ceremony on 31st January, 1951 and Bhuribai executed a deed of adoption was not seriously disputed before me and is amply established by the evidence on record.
The evidence on the factum of the plaintiff's adoption mainly consists of the statements of the plaintiff Motiram himself, Badrilal, who officiated as a priest at the adoption ceremony, and the witnesses Kashiram, Chandansingh, Manna, Sitaram and Jawanisingh, who were present at the adoptionceremony. The evidence of these witnesses is to the effect that the ceremony was held in the morning at about 11 A.M., at the house of Bhuribai; that it was conducted by Badrilal, who officiated as a priest; that the plaintiff's brother gave him in adoption to Bhuribai and placed him in her lap; and that the Homa was performed and Mantras were recited and Chandansingh tied a Pagdi around the head of the plaintiff.
These witnesses further said that just about the time of adoption Bhuribai signed and executed a deed of adoption and that it was attested amongst others by Chandansingh, Kashiram and Jawanisingh in whose presence Bhuribai signed and executed the document. There does not appear to me any valid reason for disbelieving this evidence about the fact of adoption with due performance of the requisite rites and ceremonies, when it is corroborated by the deed of adoption (Ex. P/l) and when its effect is not displaced in any way by the defendant's evidence.
In her evidence Bhuribai merely denied having taken the plaintiff in adoption or executed any deed of adoption. In her cross-examination she said she did not remember whether she executed Ex. P/l and whether it was read out to her. She admitted that many persons had collected at her house on one occasion but that she did not remember for what purpose they had come. Bonda, a nephew of Bhuribai, while giving evidence on behalf of the defendant, admitted that about a year and a half back several persons had collected at the defendant's house on an occasion when Bhuribai intended to adopt someone and that he was also present at that time.
He then proceeded to say that the Parasai did not turn up at the ceremony; that Bhuribai did not adopt anyone and no one placed the plaintiff or anyone else in her lap; that the deed was written out but he did not know the contents of it; and that Motiram was sitting on the Puja platform and the Patel tied a Pagdi around his head. It is obvious from the evidence of Bonda that though he was present at the ceremony and knew that the plaintiff had been adopted, he wanted to deny the plaintiff's adoption by saying that as the Parasai did not turn up Bhuribai did not adopt anyone and no one placed the plaintiff in her lap.
It is altogether unthinkable that a person who intends to adopt someone, arranges a ceremony for that purpose and invites several people who are actually present at the time and place fixed for the adoption, would give up the idea of taking anyone in adoption just because a certain Parasai does not attend the function. In my opinion, the fact that the plaintiff was given in adoption by his brother and so taken by Bhuribai is amply established by the evidence on record.
5. The important question to be considered in this appeal is whether the plaintiff has established that in the community to which he belongs the adoption of an orphan is permissible by custom. Learned counsel for the respondents urged that the plaintiff had nowhere pleaded any such custom. I do not agree. In paragraphs 3 and 4 of the plaint, it has been averred by the plaintiff that he was given in adoption by his brother according to
^^tkr jlwe**and ^^/keZ'kkL=**-
In reply, the defendant said in paragraphs 3 and 4 of the written statement that the plaintiff had never been adopted either according to the rules of Hindu Law or the custom of the community tkfr fjokt and that the adoption ofShe plaintiff, who was an orphan at the material;time, even if established was not valid. On thesepleadings, one of the issues framed in the suit waswhether the defendant took the plaintiff in adoptionor, 31st January 1951 according to the ^^fganw /keZ'kkL=**and ^^tkrh fjokt** as alleged in paragraphs 3 and 4 of the plaint.
It is no doubt true that in his plaint the plaintiff did not in so many words say that in his community the adoption of an orphan was customary and was valid and the issue framed also did not refer distinctly to such a custom. But none-the-less, the parties knew fully the real issue between them and actually led evidence on the question of the permissible adoption of an orphan in their community.
The defendant at no time objected to any of the issues framed by the trial court on the ground that it did not arise on the pleadings and did not even object to the reception of the evidence which the plaintiff led to prove the custom. On the other hand, the plaintiff's witnesses were cross-examined by the defendant on the statements they had made with regard to the existence of a custom of the adoption of an orphan in the community.
There is thus no force in the contention of the learned counsel for the respondents that the plaintiff cannot be allowed to fall back on any custom of the community for the validity of his adoption or that the defendant had no opportunity to disprove the custom.
6. The evidence as regards the custom relied on by the plaintiff was furnished by the plaintiff Motiram, Kashiram, Manna, Sitaram, a brother of the plaintiff, and Bhagirath. Both Motiram and his brother Sitaram deposed that in their community the adoption of an orphan was permitted and that in the past Pira and Bhagirath had been given in adoption after their parents had died and they had become orphans.
According to them Pira was now dead, Bhagirath supported Motiram and Sitaram by saying that he was given in adoption by his uncle Harchand after the death of his parents and that in the Khati community to which he and the parties belonged a custom of the adoption of an orphan was prevalent. The statement of Kashiram is also to the same effect. He also referred to Pira and Bhagirath as persons who were adopted after they had become orphans.
Manna, an old man of sixty years of age and of the same community to which the parties belong, also said that in his community the adoption of an orphan was permissible. He was not able to give particular instances of adoption of orphans. This evidence led by the plaintiff to prove the custom has been unrebutted.
The defendant made no attempt to show that the custom suggested by the plaintiff did not prevail or that the instances of Bhagirath and Pira mentioned by the plaintiff and his witnesses were not cases of adoption of orphans. The learned Additional District Judge of Dewas as well as the trial judge thought that the evidence produced by the plaintiff was insufficient to prove the custom.
According to them Motiram and Sitaram were interested witnesses who, while deposing to the custom, were not able to cite any instances except those of Pira, Bhagirath and the plaintiff himself and that likewise Bhagirath had no personalknowledge of any such ancient custom and if was only on the basis of his own adoption that he said that there was such a custom in his community. The learned Additional District Judge overlooked the evidence of Kashiram.
He though that the inability of Munna to specify instances of an orphan being given in adoption detracted altogether from the value of his statement that in his community there was an old custom permitting the adoption of an orphan.
7. In my judgment, the approach of the lower Courts to the evidence on record has been altogether wrong. There cannot be any doubt that the burden of proving a permissible custom or a custom varying the ordinary law governing the parties is on the party setting up the custom and that a custom abrogating the ordinary law should be definite and certain, ancient and invariable and must be established by clear and unambiguous evidence.
But the nature and quantum of proof in each case depends on the nature of the custom alleged. It is plain enough that if the custom is permissive and not one obligatory or opposed to the ordinary law or modifying the ordinary law of succession, then there may be only few instances and perhaps none where the custom was followed. In the case of a permissive custom, the rule of invariability will not apply and a few instances may be sufficient to enable the Court to hold that the custom prevails in the community concerned.
But where the custom which is set up is obligatory and modifying the ordinary law, the Court would hesitate a good deal before coming to the conclusion that the custom is prevalent on the basis of a few instances or on the mere statements of the witnesses that the custom alleged is in vogue. That is however not to say that the Court cannot uphold the custom on the statements of the witnesses that the custom alleged exists unless such statements are supported by instances. It all depends on the nature of the custom alleged. In Ahmed Khan v. Mt. Channi Bibi, AIR 1925 PC 267, it was observed by their Lordships at page 271:
'As regards the custom in respect of whichthe two Courts in India have differed, their Lordships think the Subordinate judge was in error in putting aside the large body of evidence on the plaintiff's side merely on the ground that Specific instances had not been proved.
They are of opinion that the learned Judges of the High Court arc right in holding that a custom of the kind alleged in this case may be proved by general evidence as to its existence by members of the tribe or family who would naturally be cognizant of its existence and its exercise without controversy.'
Similarly in Ajai Verma v. Mt. Vijai Kumari, AIR 1939 PC 22, while dealing with the question of acustom excluding a daughter from inheritance in respect of an estate governed by male primogeniture, the Privy Council again emphasized that in proving a custom it was not necessary to adduce proof of actual instances of custom taking effect. It was observed at pages 24 and 25:
'It is well established that proof of actual instances of such a custom taking effect is not necessary .............. The opinions of responsible members of the family as to the existence of such a custom, and the grounds of their opinion, though generally in the nature of a family tradition, are clearly admissible.'
On the basis of these Privy Council authorities it was held by a Division Bench of the Bombay HighCourt in Madhayrao v. Raghavendrarao, AIR 1946 Born 377, that in the case of permissive customs the test of invariability cannot be rigidly applied; that the necessary proof in each case will depend on the nature of the custom alleged; and that the want of instances or paucity thereof does not prevent the court from holding the custom, if there is a general consensus of opinion of persons who are likely to know of its existence, particularly when the evidence is all in one direction.
It is thus clear that no hard and fast rule can be laid down that the statement of a witness thata particular custom exists cannot be acted upon unless it is supported by instances or that any particular number of instances are necessary to make out a valid custom.
8. Now, here the custom relied on by the plaintiff is permissive. The plaintiff has only said that in his community the adoption of an orphan is permissible and valid and not that in his community only orphans can be given in adoption. The adoption of an orphan being necessitated only in exceptional circumstances and a rare occurrence, it is unreasonable to expect a large number of instances in proof of the custom.
It is hardly possible to suppose that even one instance of an orphan being given in adoption would be possible if the community concerned did, not according to the law of adoption, permit the adoption of an orphan. In the instant case the witnesses narrated two cases in which orphans had been previously adopted one was the case of Pira and another was of Bhigrath.
No doubt the evidence of Motiram, Sitaram and Kshiram, who cited the instances of Bhagirath and Pira, was not of persons who had been present at the adoption of Pira and Bhagirath and when they said that the custom of adoption of an orphan was prevalent in their community they deposed what they had learnt from their elders or ancestors. But that does not render their evidence valueless.
These witnesses and Manna, who was of sixty years of age at the time of his deposition, are persons likely to know the instances of custom. Moreover, in the case of Bhagirath there is clear evidence of Bhagirath himself that he was an orphan when he was adopted. There is nothing in the cross-examination of these witnesses to indicate that Pira and Bhagirath were not orphans when they were adopted or that their adoption as orphans was objected to and was not regarded as valid by the members of the community.
It is pertinent to note that in Ramkishore v. Jainarayan, AIR 1922 PC 2, where the question of the existence of a custom among Dhusars permitting the adoption of an orphan arose for consideration, the Privy Council regarded three instances of orphans previously adopted in the community as sufficient to prove the custom. With regard to two of the instances specified in that case, the evidence consisted of witnesses who were not present at the adoption but who said that the two particular persons were orphans at the time of theiradoption. With regard to the third case, there was the evidence of one witness who was present at the time of the adoption of an orphan. On the standard of proof accepted by the Privy Councilin AIR 1922 PC 2, it cannot be held that in theinstant case, where there is clear evidence of Bhagirath himself that he was an orphan at the time ofhis adoption and of the witnesses Motiram, Sitaram, Manna and Kashiram, that in the Khati community there were cases of Bhagirath and Pira adopted when they were orphans, that this evidence is insufficient to prove the custom set up by the plaintiff. The evidence led by the plaintiff for establishing the custom is wholly unrebutted by the defendant. In my view, on the evidence on record the custom of the adoption of an orphan in the Khali community to which the parties belong is amply established. Consequently, the plaintiffs adoption must be held to be valid.
9. The learned Additional District Judge also observed that the plaintiff had failed to show that Bhuribai had obtained her husband's permission to adopt the plaintiff. In my judgment, the learned appellate judge was not justified in raising the question of the authority of Bhuribai to adopt the plaintiff when Bhuribai herself had not challenged the validity of the plaintiffs adoption on that ground.
In this connection, I need only refer to the decisions in Maroti v. Radhabai, AIR 1945 Nag 60; and Nago v. Sukya, AIR 1953 Nag 239, where it is held that where a party challenges an adoption by bare denial it can be taken only of the fact of adoption and not of its legal validity and if the party does not raise any objection as to the validity of the adoption, then it cannot be permitted to urge that there was no evidence to show that the adoption, if it did take place, was not valid in law.
In AIR 1933 Nag 239, the observations of Bose J., in AIR 1945 Nag 60, were followed. Here the defendant only challenged the factum of adoption and omitted to raise any question as to the validity in law of the adoption on the ground that Bhuribai had no authority from her husband to adopt the plaintiff. Learned counsel for the respondents referred me to Ramdyal v. Chaturbhujlal, AIR 1957 Nag 79, where it has been observed that where a person sets up an adoption to displace the natural order of succession, the onus is grave and serious on him to establish not only that the adoption did in fact take place but also where the widow makes the adoption, that the widow had authority to make it. Relying on these observations, it was contended that it was for the plaintiff to prove that Bhuribai had authority to adopt him though the defendant bad not raised any objection on that score. The decision in AIR 1957 Nag 79, in no way runs counter to the decision in AIR 1953 Nag 239. In AIR 1953 Nag 239, what was in issue and was considered, was the effect of the pleadings of the parties,
It did not lay down that where the authority of a widow to make the adoption is challenged the burden of proving authority is not upon the persons setting up the adoption. In AIR 1957 Nag 79, the adoption was set up by the defendant and the plaintiff had distinctly averred that the adoption was invalid as Chandrabai, the adoptive mother, had neither the consent nor the authority from her husband Ramchandra to adopt the first defendant in that case. It is thus clear that AIR 1957 Nag 79, is not a case where there was only a bare denial of adoption.
10. For all these reasons, I am of opinion that the courts below erred in dismissing the plaintiff's suit. In the result, the appeal is allowed, the decisions of the courts below are set aside and a decree declaring the plaintiff as the validly adopted son of Bhura and prohibiting the respondents, who are the legal representatives of Bhuribai now deceased, from interfering with the plaintiff's rights as an adopted son of Bhura is passed. The plaintiff shall have his costs throughout.