1. This appeal arises out of the suit for declaration filed by the respondent plaintiff against the appellant defendant that the defendant is not the adopted son of deceased Maharaj Purshottamlalji Raghnathji of Junagadh. The suit was filed in the court of the Civil Judge. (S.D.) at Junagadh, where it was registered as long Civil Suit No. 115 of 1958. The learned trial Judge has decreed the suit and, therefore, the original defendant, who claims that he is adopted son to the deceased Maharaj Purshottamlalji Raghunathji, has preferred this appeal.
2. Short facts of the case are as under. The parties to this suit are the descendants of Shri Vallabhacharya Maharaj, the original founder of Suddh Adwit Pushti Marg. He flourished in Vikram Samvat 1535 which is equivalent to 1479 A.D. The family of the parties is called Vallabhkul. It is an admitted position that the descendants of Shri Vallabhacharya Maharai are working as Acharyas of various temples and Shrines in Gujarat and other places and are generally known as Goswamis, Acharyas or Maharajas. Their offices are known as 'Gadia'. These Goswamis are Vaishnavs by religion and they worship and idol of Lord Krishna.
3. One of these Gadis is at Junagadh. The last holder of Junagadh Gadi was late Shri Purshottamlalji Raghunathji, who has admittedly died on 11-9-55. The respondent-plaintiff, who is called Shri Vahuji Maharaj Shri Chandraprabha, is the widow of Shri Purshottamlalji Raghunathji. The record of the case reveals that after the death of Shri Purshottamlalji, there are some movement to bring someone else to the Gadi of Junagadh temple by adoption. The record further reveals that there was one Vrajnathlalji, who was carrying on some agitation against the plaintiff sometime after the death of Shri Purshottamlalji. Eventually this gentleman is found to have filed one suit against the plaintiff on 2-1-1947. That suit was registered as Civil Suit No. 2 of 1957. Ex. 59 is the certified copy of the plaint filed in that suit. The respondent plaintiff filed written statement to that plaint as found at Ex. 61 wherein she is found to have admitted the fact that she has adopted the appellant-defendant as a son to her deceased husband Purshottamlalji.
4. It is an indisputable position that in the family of the parties, there is a customary adoption whereby a widow can adopt a son even if he is an orphan.
5. The appellant-defendant is one of the sons of one Vrajnathlalji of Bombay. In this case one of the main witnesses examined by the appellant-defendant is witness Murlidharlalji. This Murlidharlalji is the eldest brother of the defendant. The defendant's father has died on 7-12-1952 while his mother had died on 12-1-1955. It is also an admitted position that the defendant and the deceased Purshottamlalji are the descendants of a common ancestor, because the grand father of the defendant and the grand father of the deceased Purshottamlalji, were admittedly the real brothers. As stated above, the defendant lost both of his parents by the year 1955. His adoption is said to have taken place on 18th March 1956 and, therefore, at that time he was an orphan.
6. The case of the defendant is that on 18th March, 1956 the plaintiff the widow of the deceased Purshottamlalji adopted him as per their family custom. At the time of the said adoption, some ceremony, which is common to the family was performed. This ceremony consisted of making of a 'Tilak' on the forehead of the defendant in presence of the idol of Lord Vishnu, the putting up of an uparna (a piece of cloth) on the body of the defendant and making the defendant sit first in the lap of the plaintiff and then on the Gadi of deceased Purshottamlalji. After performing this ceremony, intimations thereof were also given to the devotees and other concerned persons. According to the defendant, this type of adoption, which is customary in their family, is known either as 'Goda Datta' or 'Goda'. The expression 'Goda' in Gujarati language means 'lap'.
7. It is revealed from the record of the case that after the above referred adoption of the appellant, the parties could not carry on happily. It is an admitted position that the defendant, was at that time, a minor. It is found that on 10th April, 1958, a devotee named Mukundas Girdhardas, filed guardinship application being Civil Miscellaneous Application No. 40/58 in the court of District Judge, Junagadh, alleging that the defendant's life was in danger and that the plaintiff was squandering away the property of the deceased. The application was made with a view to obtain an appointment of a guardian of the person as well as the property of the minor defendant. It is found from the record of the case that on the next day i.e. the 11th April 1958, the learned District Judge appointed an interim receiver in that application giving some directions to the receiver regarding care and protection of the minor. It appears that the defendant's witness Dixitlalji was working as the guardian of the defendant and it is an admitted position that this witness is also working in this suit as the guardian adlitem of the appellant because when this suit was filed, the defendant was a minor.
8. The present suit is filed by the respondent on 14-4-1958. The relief which is claimed in the suit is for a declaration that the defendant is not the legally adopted son of deceased Purshottamlalji as the defendant was orphan at the time of the alleged adoption and also because the said adoption was made with-out any ceremony of 'giving and taking'. The plaintiff has also alleged that in fact she has not taken the defendant in adoption at any time and the ceremony which was made was only a 'Tilak' ceremony whereby the services of the defendant were to be obtained for the purpose of doing Seva Puja of the Shrine. The defendant has filed his written statement to this suit on 15th August, 1958 but before this written statement was filed, the plaintiff is found to have made a written declaration on 17th July, 1958 stating that the adoption in question had never taken place and that even if it is believed that it has taken place, it stands revoked. This declaration is found at Ex. 292. It was registered with the Registrar of Documents. The plaintiff took care to send the copies of this declaration to the defendant's guardian as well as other concerned persons before the written statement was actually filed by the defendant. Under the circumstances, it is an admitted position that when the written statement was filed, the defendant was knowing that one of the pleas of the plaintiff was that even if the adoption of the defendant was held as proved, the said adoption was revoked. In his written statement, therefore, the defendant has pleaded that he is adopted by the plaintiff not according to the provisions as contemplated by Hindu Law but in accordance with the customary adoption known as 'Goda Datta'. The defendant has challenged in his written statement the plaintiff's right to revoke the said adoption because according to the defendant, the said adoption of 'Goda Datta' once made cannot be revoked. In view of this written statement, the plaintiff applied for further and better particulars of the custom which was pleaded by the defendant by her application dated 11-9-1958. The defendant gave the said particulars on 9-11-1958 and thereafter on 12-2-1959, the plaintiff filed a rejoinder as found at Ex. 24.
9. It is an admitted position that in the family of Vallabhkul, to which the parties belong, there is a custom known as 'Goda Datta'. However, as the case entered the stage of recording of evidence, the defendant has taken up a contention through the deposition of his witness Dixitlalji that there are two types of customary adoptions in the family of the parties. One type is known as 'Goda Datta' while the other type is known as 'Samanya Goda' or 'Goda'. In answer to this, the plaintiff has taken a contention that the customary adoption which is prevalent in her family is only of one type and that is known as 'Goda Datta' or 'Goda'. Thus it is admitted by both the parties to this suit that 'Goda Datta' is undoubtedly the customary adoption prevalent in their family. Now so far as the 'Goda Datta' adoption is concerned following are its peculiarities, which are not in dispute: -
(i) No ceremony of giving and taking of the boy is necessary in 'Goda Datta' adoption.
(ii) The ceremony of 'Datta Homam' is also not necessary.
(iii) Even an orphan can be adopted as a son by this type of custom.
(iv) Other ceremonies are not strictly necessary but the ceremonies which are generally adopted in accordance with the family traditions are as under:
(1) 'Marjan' meaning pouring of sacred water on the person of adoptee.
(2) 'Punav-Vachan' meaning reading of holy literature at the time of adoption.
(3) 'Tilak' on the forehead of the adoptee in front of idol.
(4) Smelling of the head of the adoptee and putting on an 'Uparna' (a scarf) on the person of adoptee.
10. It is more or less an admitted position that these ceremonies are not absolutely necessary in the said customary adoption.
11. Before proceeding further, it is necessary to note that nowhere in the pleadings of the parties including the written statement and the particulars furnished by the defendant regarding the custom in question, do we find anything to suggest that there are two types of customary adoption prevalent in this family of Vallabhkul. In fact, if a reference is made to the particulars of the custom supplied by the defendant at Ex. 20, it will be clear that the defendant has therein pleaded only one custom, namely, 'Goda Datta'. However, as said above, during the course of the deposition of defendant's witness Dixitlalji Ex. 86 for the first time a plea is raised that two types of customary adoption are prevalent in this family. Witness Dixitlalji admits that in none of the two types propounded by him the ceremonies of 'give and take' as well as of 'Datta-Homam' are necessary. He, however, points out that there is substantial difference in the consequences ensuing from these adoptions. According to him, while 'Goda Datta' adoption is irrevocable and results in the consequences which are same as those of Dattak form of Shastriya adoption, the 'Samanya Goda' type of adoption is revocable and has other attributes, to which we shall refer later on. The dispute in this case centres round the revocability or otherwise of 'Goda Datta' adoption.
12. It is found from the record of the case that in the past there have been several instances of 'Goda Datta' adoption in the family of the parties. Some of these instances are also found to have resulted in litigation. Moreover, in the record of the case, we find at Ex. 115 a book which contains the family history of Vallabhkul, compiled and edited by the defendant's witness Vrajbhushanlalji of Kankroli. This book shows the names of various persons who are either taken or given in 'Goda' adoption. The point to be noted at this stage is that this book nowhere mentions that two types of customary adoptions are prevalent in this family.
Moreover, in the record of the case, we find good deal of evidence about the disputes which were raised in the courts of law regarding this type of adoption. We have got in the record of the case, certified copies of plaint and written statement filed in Civil Regular Suit No. 9 of 1947 in the Court of Broach on 22-4-47. At Ex. 278 is the certified copy of this plaint and reference to it shows that the plaintiff therein has pleaded that he was adopted by 'Goda Datta' adoption. At Ex. 279 is the written statement filed in that suit showing that the defendant of that suit had challenged the custom of 'Goda' type of adoption before the Court. In this suit, the present defendant's main witness Dixitlalji was examined as a witness for proving the customary adoption. This deposition of witness Dixitlalji was recorded there on 2-1-55 i.e. a few years before this suit was instituted. Certified copy of the deposition given by this witness Dixitlalji is taken in evidence in this case but on admission of both the parties and reference to it shows that therein witness Dixitlalji has described at length the various instances of 'Goda Datta' form of adoption. He is found to have stated therein that revocability is one of the incidents of this of this 'Goda Datta' adoption. Another fact to be noted at this stage with regard to this deposition is that therein the witness has not stated anything to suggest that there are two types of customary adoptions prevalent in their family. It may be proper to mention here that according to this deposition, the main incidents of 'Goda Datta' adoption are as under:
(a) That it is unilaterally revocable by either of the parties to the adoption.
(b) That the boy so adopted retains his right of inheritance in his natural family.
(c) That his spiritual connection with his natural family are not severed and, therefore, he can offer Pind to his ancestors in natural family.
(d) That he can be taken in 'Goda' adoption at more that one place even if the previous adoption is continuing.
Now this very witness is examined in this case and during the course of his examination, he has come out with an explanation that, what he had described during the course of his deposition in the Broach Court, is 'Samanya Goda' of adoption and not the 'Goda Datta' type of adoption. According to witness Dixitlalji, the defendant of this case was adopted in accordance with 'Samanya Goda' type of adoption. However, according to the plaintiff, there is only one type of customary adoption and it is 'Goda Datta' type. According to the plaintiff, all the above referred attributes, which witness Dixitlal has described during the course of his deposition in Broach Court, are the attributes of 'Goda Datta' or 'Goda' adoption, which is prevalent in the family.
13-14. It should be mentioned here that the defendant himself is not conversant with any type of adoption, and therefore, his deposition does not throw any light on the controversial points. Witness Dixitlal is the first witness who is examined on this point in this case on behalf of the defendant and as said above, it was for the first time during the course of his deposition in this suit that this theory of two types of customary adoption was revealed. The subsequent witnesses of the defendant, who are examined during the course of the trial have made an attempt to support that theory.
15. As a result of the evidence offered by the parties, the learned trial Judge has held as under:
(1) That the defendant was adopted according to the customary adoption of the family.
(2) That there is only one type of customary adoption and the same is known as 'Goda Datta' or shortly as 'Goda'.
(3) That 'Goda Datta' is revocable unilaterally by either of the parties and that such a revocation is in fact made by the plaintiff.
During the course of the trial, the defendant had raised a contention that when this suit was filed, the alleged revocation of the adoption was not made by the plaintiff and since the same was made after the institution of the suit, the suit should be treated as premature. The learned trial Judge has rejected this contention also and has ultimately decreed the plaintiff's suit.
16. The defendant has preferred this appeal and has taken up the contentions which were raised by him during the course of the trial. Since the learned trial Judge has found that the defendant was adopted as per family custom, the respondent-plaintiff has challenged this finding in form of cross-objections. Now so far as these cross-objections are concerned, we are of the opinion that the learned trial Judge was correct in his view that the plaintiff had adopted the defendant in accordance with the custom prevalent in their family. We find that there is voluminous evidence in the record of the case to show that the said adoption had taken place as alleged by the defendant. Therefore, the case of the plaintiff that the services of the defendant were engaged only for the purpose of performing 'Seva Puja', is rightly rejected by the trial court. Since the learned advocate of the respondent-plaintiff has not preferred to address us on this question and since we find that the evidence which is recorded in the case is voluminous and of unimpeachable character to suggest that the defendant was adopted by customary adoption in the month of March, 1958, we do not propose to discuss this part of the evidence in detail and, therefore, we directly go to the other controversial points, which are involved in this appeal.
17. Now Shri Nanavati, who appeared on behalf of the appellant, raised the following contentions against the judgment and decree passed by the lower Court.
(1) That the defendant has satisfactorily proved that there are two types of customs in the family, namely, 'Goda Datta' and 'Samanya Goda' and that the adoption which is made in accordance with 'Goda Datta' type of custom is irrevocable.
(2) That assuming that there is only one type of custom as contended by the plaintiff, the plaintiff has failed to prove that the adoption which is made by that custom is revocable at the instance of either of the parties.
(3) That looking to the deposition of defendant's witness Lalan Krishan Shastri, even if it is believed that the customary adoption in question is revocable, it may be revoked only on some reasonable grounds and since the plaintiff in this case has not revoked this adoption on any reasonable ground, the said revocation is not legally operative.
(4) That at any rate, the declaration found at Ex. 292 by which the revocation is said to have been made, does not legally revoke the adoption inasmuch as it does not admit the fact of adoption of the defendant.
(5) That on proper construction of Sections 4 and 15 of the Hindu Adoptions and Maintenance Act of 1956, the custom in question was no longer in force on the day of the alleged revocation and, therefore, revocation in accordance with that custom could not have been legally made by the plaintiff. According to Mr. Nanavati, the adoption validly made before the application of the said Act becomes absolute and irrevocable as result of Section 15 of the Act.
(6) That the prayer for declaration that the defendant is not adopted cannot be granted in view of the fact that the alleged revocation has made by the plaintiff only after the institution of the suit.
These are the only six contentions which are raised on behalf of the appellant, and therefore, we shall now proceed to consider the merits of these contentions.
18. Before discussing the merits of these contentions, it would be proper to mention here that a question as regards the custom in dispute had arisen in a litigation before the Court of District Judge at Amreli (of the former Baroda State) where the said suit was registered as Civil Suit No. 1/35-36. At Ex. 265 is the plaint and at Ex. 266 is the written statement filed by the parties in that suit. The learned District Judge before whom the suit was filed gave his judgment in that case as found at Ex. 255. By this judgment, he held that the custom in question was in force in the family of the Vallabhkul and that the incidents of that custom were practically the same as described above and found in the deposition given by witness Dixitlalji in the above referred litigation before the Broach Court. Against this decision of the then learned District Judge at Amreli, an appeal was preferred before the High Court of Baroda State. The learned Judges of the High Court disagreed with the learned District Judge as found from their judgment Ex. 256 dated 23-10-40. An appeal was preferred against the judgment of the High Court of Baroda to the Hazoor Court, which was the final Court in the former Baroda State. The learned Judges of the said Hazoor Court set aside the judgment of the High Court of Baroda and restored the decree passed by the learned District Judge. Amreli by their order found at Ex. 257. It is dated 29-12-43. All these judgments, are relied upon by the plaintiff in support of her case. Over and above this, we also find certified copy of the judgment given by the High Court of Bombay in Civil Suit No. 2099 of 1923 dated 16-10-30. This judgment is found at Ex. 227 and the same is found to have been given by Mr. Justice Kania (as he then was). This judgment has considered the legal implications of the customary adoption with which we are concerned, we shall refer to the relevant portion of this judgment at a proper stage during the course of his judgment.
19. For the sake of convenience, we take the first two points raised by Shri J.R. Nanavati together for our consideration. As stated above, according to the defendant, there were two types of customs and the main difference between the consequences ensuing from these two customs is as regards the revocability of the adoption. Now even the plaintiff admits one of these customs. We have stated these facts in the foregoing portion of our judgment which makes it clear that it is common ground between the parties that the customary adoption known as 'Goda Datta' is prevalent in the family of the parties. It is also an admitted position that the custom which is propounded by her is revocable. According to the defendant, all the above described incidents of customary adoption such as revocability, right of the adoptee to inherit the property of his natural family as well as the adoptive family, right to get adopted at different places in spite of the continuance of the previous adoption, are the incidents not of 'Goda Datta' type of adoption but of the 'Samanya Datta' type of adoption. Thus there is difference between the parties as to the nomenclature of the adoption, which is revocable. But apart from this difference as regards nomenclature, one thing which is admitted is that in the family of the parties, there is a customary adoption which is revocable and in which the adoptee retains spiritual as well as secular affiliation with his natural family. Under the circumstances, it is proved even from the admissions of the parties that in his family there is a customary adoption which is revocable. Under the circumstances, there is no need to discuss evidence on the question whether it is customary with this family to resort to an adoption which is revocable. This would provide an answer to point No. 2 which is raised by Shri Nanavati on behalf of the appellant. In our view, therefore, the main and the first question which arises to be considered is whether there is any other type of customary adoption as pleaded by the defendant witness Dixitlalji and whether the said adoption is known as 'Samanya Goda'?
20. For showing that there is such type of customary adoption and also for showing that in 'Goda Datta' type the adoption is irrevocable, the defendant has examined the following witnesses: -
1. Dixitji Gokalnathji Acharya, Ex. 86, to whom repeated reference has been made in the foregoing portion of the judgment and who happens to be the guardian of the defendant.
2. Murlidharlalji Vrajnathlalji Acharya who is elder brother of the defendant and whose deposition appears at Ex. 226.
3. Vrajbhushanlalji Balkrishanlalji, who has compiled the book Ex. 115 to show the family history of the parties and whose deposition appears at Ex. 114.
4. Chhaganlal Chothmal, whose deposition appears at Ex. 113. This witness is a resident at Kankroli and imparts religious teachings to the children of Goswamis at Bombay and
5. Lalan Krishna Shastri, whose deposition appears at Ex. 254. This witness is an original resident of Mathura and is a teacher at Mathura Chaturved Adarsh Vidyalaya.
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21. The above general analysis of the evidence offered by the first four witnesses of the defendant named above, shows that even without entering into the details of the depositions given by them, we can safely come to a conclusion that these witnesses are of no use for proving that there are two types of customs prevalent in the family of the parties. This aspect of the case, therefore, enhances the importance of the evidence furnished by the 5th witness, namely, witness Lalan Krishna Shastri.
22. It is in the background of these general remarks that we now proceed to the detailed consideration of the evidence offered by these witnesses.
23. We have already noted above that none of the witnesses of the defendant including the defendant's main witness Dixitlalji, is able to cite even a single instance of a transaction showing that 'Goda Datta' adoption was treated by the concerned parties as irrevocable. We have already shown that under the circumstances, the requirements contemplated by Section 13 of the Indian Evidence Act for proving the transactions in question are not satisfied. Now under the Indian Evidence Act, there are three provisions relating to the proof of custom. One is Section 13 which is referred to above. The other is Section 48 and the third one is sub-section (4) of Section 32. We have already considered the provisions of Section 13. So far as Section 32(4) is concerned, it applies to the statement made by the persons who are dead or who cannot be found. The provisions of this section would also, therefore, not be of any help so far as this case is concerned. It is Section 48 which makes opinion evidence as regards Custom, relevant. Generally speaking, opinion evidence, unless it is the opinion of an expert, is not admissible, but Section 48 of the Evidence Act provides an exception to this general rule and since witness Dixit and other witnesses of the defendant have made an attempt to prove the alleged custom of 'Samanya Goda' by expressing their opinion, it is necessary to consider whether in this case the requirements of Section 48 of the Indian Evidence Act are satisfied. Section 48 is in the following terms:
'48. When the Court has to form an opinion as to the existence of any general custom or right, the opinions, as to the existence of such custom or right, of persons who would be likely to know of its existence if it existed, are relevant.
Explanation: - The expression 'general custom or right' includes customs or rights common to any considerable class of persons.'
24. It is obvious from the provisions of this section that only the persons who are 'likely to know' about the existence of custom in question are competent to give opinion evidence contemplated by this section. Therefore, the first question which would arise while considering evidence offered by the witnesses of the defendant is whether these persons are 'likely to know' the existence of custom. Further the evidence which is offered under Section 48 of the Indian Evidence Act being opinion evidence in its character, it would obviously be governed by Section 51, whenever the opinion of any living person is relevant, the grounds on which such opinion is based are also relevant. Thus before accepting the opinion evidence offered by an witness, it would be necessary to test the grounds on which the said opinion is based. Considering these provisions of Section 48 and 51, it is undoubtedly true that while giving opinion evidence, it is not absolutely necessary for the person giving his opinion, that he should have personal knowledge about the facts sought to be proved by him. However, such a witness should possess sufficient experience which would go to suggest that he is 'likely to know' of the existence of the custom sought to be proved by him. In other words, the witness in question should possess experiential qualifications before his evidence gathers any credibility. If he fails in having this experiential qualification, he should show on what grounds his opinion is based. His opinion may be based on the study of some ancient documents; it may also be based on the personal inquiry conducted by him from the persons who are contemporaneous to the exercise of the custom in dispute; or it may be based on any other method which would give him reliable and true evidence about the existence of the custom. But so long as it is not found that the expression of his opinion is based on some such reliable information, his mere repetition of hearsay would not carry any weight. In other words, a mere ipse dixit of these witnesses is not admissible and relevant under the provisions of the Indian Evidence Act, and would not carry any evidentiary value. It is n context of this principle that we now proceed to consider the evidence supplied by these witnesses.
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25. It is thus found that out of the five witnesses examined by the defendant on this point, four witnesses are not capable of proving the existence of two customs and the fifth one who is found dependable proves that there is only one custom and that custom is of a revocable adoption known as 'Goda Datta' or 'Goda'. This, therefore, finishes the oral evidence produced by the defendant.
26. In view of what is stated above, we do not find it necessary to make any reference to the oral evidence produced by the plaintiff but we would surely like to make a short reference to the above referred judgments of the Courts of the former Baroda State and the certified copy of the judgment given by the High Court of Bombay in Civil Suit No. 2099 of 1923. We would like to refer to these documents for the simple reason that they provide the instances of the customary adoption in question. The law on the subject is that judicial decisions recognizing a custom are relevant and admissible even though they are not 'inter partes' provided they supply evidence of instances or transactions contemplated by Section 13 of the Indian Evidence Act. This legal position is now well settled and, therefore, it is not necessary for us to make any detailed reference to the law on the point. We would, however, cite one Bombay and few Privy Council decisions on this point, without discussing any details. The Bombay decision is given in the case of Suganchand Bhikhamchand v. Mangibai Gulabchand, reported in ILR (1942) Bom 467 = (AIR 1942 Bom 185). That was the case of customary adoption amongst the Jains. In that case, decision of the Maharaja of Jodhpur State on appeal from the Chief Court of Jodhpur holding that a Jain widow does not require the consent of her husband or his kinsmen to make an adoption, was held to be sufficiently cogent evidence of the adoption is dispute. Another decision on this point is the Privy Council decision given in the case of Mst. Kesarbai v. Indarsingh Ishwarkumar, reported in , wherein it is held that a judgment relating to existence of a custom is admissible to corroborate the evidence adduced to prove such a custom in another case. As to the admissibility of a judgment not inter partes under Section 13 of the Indian Evidence Act, we may refer to the Privy Council decision given in the case of Collector of Gorakhpur v. Ram Sunder Mal reported in , Kesho Prasad Singh v. Mt. Bhagjogna Kuer, reported in . We may also make a reference to two Supreme Court decisions in the cases of Srinivas Krishnarao Kango v. Narayan Devji Kango reported in : 1SCR1 and Sital Das v. Sant Ram reported in : AIR1954SC606 . In this connection, it may also be noted that the consideration of 'Goda Datta' type of adoption has also been made by the Supreme Court in the case of Vallabhalalji v. Mahalaxmi Bahuji Maharaj reported in : 3SCR641 . The reported decision shows that the custom of 'Goda' adoption was not in dispute in that case but the decision is on the question whether in such types of customary adoptions, there is any prohibition to adopt wife's sister's husband. So far as the case before us is concerned, no such point is involved but it is worthy to note that even in the said Supreme Court case, the evidence of customary adoption known as 'Goda Datta' was not in dispute.
27. With these remarks we shall now shortly refer to the Baroda and Bombay judgments referred to above. As stated above, the plaint in the Baroda case which was Civil Suit No. 1/35-36 is at Ex. 265 and written statement at Ex. 266. The judgment given by the District Judge is at Ex. 255. This judgment shows that one of the questions involved in that case was whether 'Goda Datta' adoption was revocable or not. This question was resolved by the learned District Judge in favour of its revocability. This is evident from the discussion which is contained in Para. 7 of that judgment. It appears that subsequently at the appellant stage, the question as regards the revocability of the adoption was not pressed by the party concerned but that aspect of the case makes no difference because it is found from the pleadings and the judgment of the trial Court that the revocability of the adoption in question was asserted by the plaintiff and denied by the defendant. The parties also appear to have led evidence on that question. The Court ultimately came to the conclusion that the customary adoption, namely, as 'Goda Datta' was unilaterally revocable. In our opinion, therefore, this judgment of the then learned District Judge of Amreli provides a further example of a transaction of a revocable adoption known as 'Goda Datta'. This particular finding of the learned District Judge is confirmed by the Hazoor Court of the Baroda State. In their judgment, found at Ex. 257, the learned Judges of the said Hazoor Court have observed as under: -
'It would be convenient to take up the second point first and consider the undisputed features of Goda adoption. Goda Dattak is not the legal adoption under the Hindu Law. It is a customary form of adoption followed for purposes of continuing the worship in Vaishnav temples of Vallabhacharya sect. The following special characteristics of this custom were found by the trial Court;
(1) No......and.......(that is giving and taking absolutely essential in the Dattak form of adoption under Hindu Law) are necessary (sic) for a boy to become a Goda Dattak.
(2) A person taken in Goda Dattak can renounce the Gadi of his adoptive father.
(3) A person taking another Goda Dattak can compel him to renounce his right to the Gadi.
(4) A person taken as Goda Dattak has to observe the mourning on the death of his natural father.
(5) A person taken in Goda Dattak can be readopted as Goda Dattak in another family and enjoy the properties in both the families.
(6) A Goda Dattak does not lose his rights in the natural family'.
Further in the said judgment, the learned Judges have made the following observations as regards the incidents of 'Goda Datta' adoption:
'This characteristic of Goda Dattak proves conclusively that unlike the Dattak form of adoption the Goda Dattak does not create a status in the adoptive family for the adoptee, a status from which certain consequences would follow. It is more or less a secular form of affiliation which lasts so long as it is not revoked by the adopter or renounced by the adoptee and the only customary consequence is that the adoptee gets the Gadi of the adopting father unless the Goda Dattak is removed. The custom of Goda Dattak is similar to the custom prevailing among the Gayawala and which is discussed in AIR 1939 Patna 416.'
This finding of the Hazoor Court of Baroda, therefore, sufficiently corroborates the case of the plaintiff.
28. Now so far as the Bombay judgment is concerned, the same is found at Ex. 277 in the record of the case. This judgment was given in a money suit filed by one Goverdhanlalji Yashodanandanji against one Goswamiji Dwarkeshlalji Vallabhraiji Maharaj. The facts revealed in the judgment show that the defendant of that case. Dwarkeshlalji, had made a promise to the plaintiff, Goverdhanlalji, an amount of Rs. 5,00,000/- in consideration of the latter trying to procure for him the religious Gadi of the shrine, at Kotah. The widow of the last owner of that Gadi had already adopted one adopted one person by 'Goda Datta' type of adoption but as a result of some efforts of the plaintiff Goverdhanlalji of the Bombay suit, the said adoption was cancelled and a fresh adoption of defendant. Dwarkeshlalji, was made. Dwarkeshlalji had initially made a part payment towards the amount of Rupees 5,00,000/- which he had promised to pay to Goverdhanlalji. But he failed in making the payment of the balance and, therefore, Goverdhanlalji was constrained to file this suit in the High Court of Bombay. The question which arose before the High Court was whether the consideration of the promise was against the public policy. While considering this question, Mr. Justice Kania (as then he was) has made certain observations, which amount to the interpretation of 'Goda Datta' type of adoption. Of course, this judgment cannot be treated as an instance of a transaction of 'Goda Datta' custom because that custom was not in question in that suit. However, in that case the incidents of the 'Goda Datta' type of adoption were admitted and Mr. Justice Kania, who has decided that case, has considered the legal implications of these incidents. This consideration of the legal incidents amounts to the judicial opinion expressed by a Judge and, therefore, these observations have undoubtedly a persuasive value. We have, therefore, considered these observations in the light of the evidence recorded in this case and we have come to the conclusion that the observations in question interpreting the legal effect of incidents of 'Goda Datta' type of adoption are accepted. The observations in question are as under:
'I accept the evidence of the plaintiff and Laxmishanker on these points. Bearing these fundamental differences in mind it is clear that such a godh adoption is a pure creature of custom and not of law. As a godh adoption could be cancelled at the option of either party the position of the adopted person, was nothing higher than that of a dignified employee or licensee engaged to perform the rites and enjoy the privileges for the time he continued to be such a son. Such an adoption had absolutely no religious significance or merit and fell far short of even an ordinary contract between the parties. By reason of such an adoption the adopted person did not lose any right and the fact that he could be adopted in two or three families unconnected with each other showed that it was only a secular arrangement without any religious efficacy attached thereto. In no event he could be called reflection of a natural born son in the family and his rights and privileges would only be governed by the contract between him and the person taking him in adoption'. It was contended by the learned Advocate of the appellant that these observations are of no value so far as this case is concerned, because the case in which these observations are made by the Bombay High Court did not involve any question as to custom. We find that though it is true that case did not involve any dispute as to the existence of customary adoption called 'Goda Datta' the observations are nothing but the expression of a legal opinion by a jurist on the facts before him. If we have got similar facts before us, the legal opinion expressed by a Judge of eminence would usually have a persuasive value, and though we are not bound to follow that opinion, we can always consider that opinion on its own merits. We find that considering the facts that the adoptee of a 'Goda Datta' adoption can continue his secular and spiritual affiliations with his natural family, that he can be taken in second adoption even though the first adoption continues to remain in force, that his adoption can be revoked unilaterally by any of the parties to the adoption, the observations made by the learned Judge in this Bombay case are fully justified. Therefore, we find that these observations render further help to the plaintiff in proving her case as regards the legal implications of a 'Goda Datta' adoption.
29. In view of the preceding discussion we find on points Nos. 1 and 2 raised by Shri Nanavati, that there is only one type of customary adoption prevalent in the family of the parties, and that this type is known as 'Goda Datta'. We also find that this 'Goda Datta' adoption is unilaterally revocable. This, therefore, brings us now to point No. 3. On this point, Shri Nanavati, contended that even if it is believed that this adoption of the defendant is revocable, it can be revoked only on 'reasonable', grounds, because, that is the deposition given by the witness Lalan Krishna Shastri. Now so far as this witness Lalan Krishna Shastri is concerned, we have already noted above that according to him 'Goda Datta' adoption can be revoked on 'Sapeksha'........reasons. There is nothing in his deposition to show what he means by the word 'Sapeksha'. If we take the literal meaning of that word, it means that adoption can be revoked for some reasons which are 'relative' in character. Now so far as the record of the case is concerned, we do not find that any such qualification is attached to the revocation of 'Goda Datta' adoption. Therefore, the witness remains totally uncorroborated on this part of his evidence. But even if it is believed that the witness does not require any corroboration and that what he states should be taken as true, the question is as to who has to decide whether the reason is sufficient or not. It is, after all, a 'relative' reason, which is pleaded by the witness. Therefore, the question is 'relative' to what and to whom? Obviously, it is relative to one who wants to revoke the adoption in question. In other words, it is the subjective satisfaction of the one who wants to revoke the adoption, which matters. We, therefore, find that the defendant should fail even on the third point raised by his learned Advocate.
30. The fourth contention raised was that in fact the deed of declaration, found at Ex. 292, does not, and cannot, revoke the disputed adoption for the simple reason that it does not make any admission of the adoption in question. It is, of course, true that the deed does mention that no adoption as is alleged by the defendant, has taken place. But the declaration proceeds further and says that even if it is believed that any such adoption has taken place, the same is thereby revoked. We do not see any reason why such an alternative statement making a clear and unequivocal statement as regards the revocation of the adoption cannot have a legal effect. We, therefore, find that even here, there is no force in defendants contention.
31. The fifth contention was argued very vehemently by Shri Nanavati, who appeared on behalf of the appellant. According to him, even if it is believed that the adoption, as pleaded by the plaintiff has taken place and that it is revocable, the revocability thereof ceases to have any effect after the application of Hindu Adoptions and Maintenance Act, 1956. He particularly put reliance upon Sections 4 and 15 of the said Act and contended that in view of these two sections of the Act, the custom in question ceases to have any effect and the adoption becomes final and irrevocable. In order to appreciate these contentions of Shri Nanavati, it would be proper to refer to the relevant sections of the Act. But before doing so, it should be noted that the Act has come into operation on 21st December, 1956, while the adoption of the defendant has taken place on 18th March, 1956 and revocation thereof has taken place by virtue of the document Ex. 292 on 17-7-58. It is, therefore, apparent that the adoption took place before the Act came into force but the revocation took place after the Act was applied.
32. Now the Hindu Adoptions and Maintenance Act, 1956 (which is referred to in this judgment as 'the Act') admittedly applies to any person, who is Hindu by religion. Section 4 thereof provides for the overriding effect of this Act and says that save as otherwise expressly provided in this Act, 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. According to this section, therefore, a custom which is found to be in force immediately before the commencement of the Act would cease to have any effect only to the extent to which any provision with regard to the matter covered by the custom is made in the Act. Two important features of this section which should be noted, are, (1) that the section is prospective, and not retrospective, in its operation and (2) that it abrogates only those customs and usages with respect to which special provision is made in the Act. With this meaning of the section in mind, we may now proceed to consider Section 15. This Section 15 is in the following terms: -
'15. No adoption which has been validly made can be cancelled by the adoptive father or mother or any other person, nor can the adopted child renounce his or her status as such and return to the family of his or her birth.'
Shri Nanavati put reliance upon the provisions of this section and contended that the Legislature, after having provided in Section 4 that the Act would have an overriding effect on the customs and usages prevalent immediately before the commencement of the Act, specifically says in Section 15 that the adoption which has been validly made before the Act came to be applied, cannot be cancelled either by the adoptive father or by the adopted son. It also provides that the status, once acquired by adoption, can never be renounced. According to Shri Nanavati, therefore, the adoption of the defendant, which was valid and complete on the date of the application of the Act, became absolute by virtue of the provisions of Section 15 read with Section 4 thereof. According to Shri Nanavati, therefore, that part of the custom of this family which says that the adoption would be revocable, would no longer remain in force, and in spite of the original revocability of the adoption, the said revocability cannot now be availed of by the plaintiff.
33. We find that this contention is not acceptable on two grounds. The first ground is that neither Section 4 nor Section 15 of the Act is retrospective in its operation and, if these sections are construed in their proper perspective, it would appear that they refer only to those adoptions which have come into existence after the application of the Act. The second ground is that the contention raised by Shri Nanavati with regard to the legal effect of Section 4 and 15, omits to take into consideration the provisions contained in Section 30 of the Act, which saves the validity and effect of all the adoptions which are made before the commencement of the Act.
34. Since in our opinion, the provisions of the Hindu Adoptions and Maintenance Act, cannot be properly appreciated and construed without reading the saving clause found in Section 30, we shall first deal with the effect of Section 30 on all the relevant provisions of the Act including Sections 4 and 15 on which the reliance is placed by Shri Nanavati. It should be noted that Hindu Adoptions and Maintenance Act, 1956 is a composite Act which deals with the questions of adoptions and maintenance. Sections 1 to 17 relate to adoptions, Sections 18 to 28 relate to maintenance, Section 29 repeals Hindu Married Women's Rights to Separate Residence and Maintenance Act of 1946 and sub-section (2) of Section 30 of Hindu Succession Act of 1956, while Section 30 saves the adoptions which are made before the commencement of the Act. This Section 30 is in the following terms:
'30. Nothing contained in this Act shall affect any adoption made before the commencement of this Act, and the validity and effect of any such adoption shall be determined as if this Act had not been passed.'
Shri Nanavati, who appeared on behalf of the appellant, contended that the effect of Sections 4 and 15 of the Act should first be construed independently of Section 30, and if that is done, it would be found that Section 30 does not save that consequence of the customary adoption named 'Goda Datta' which would entitle the plaintiff to revoke the defendant's adoption. In our view, this approach is wholly wrong and misses to take into consideration the overriding effect of saving clauses which are generally provided in every repealing statute. Since Section 30 specifically provides that 'nothing contained' in the Act shall affect any adoption made before the commencement of the Act, we are of the opinion that no single provision of the Act can be appreciated and construed without reference to Section 30. The saving clause of a repealing statute normally acts as an exception to the general operation of the statute in which it is found. It has obviously a pervading effect over the whole of the statute and controls all those provisions of the statute which come within its sweep. It is generally employed to restrict the repealing Acts, and to protect the existing vested rights, and therefore, the rights and actions which are saved by it remain totally untouched by the operation of the repealing Act. It would, therefore, be a mistake to construe the provisions of the repealing Act without simultaneously considering the impact of the saving clause on those provisions. That being the position, it is not possible to agree with Shri Nanavati in his contention that the provisions of Sections 4 and 15 of the Act should first be construed independently of the provisions of Section 30. Now if we refer to the provisions of S. 30, we find that it contemplates two implications namely, (1) that none of the provisions of the Act shall affect any adoption made before the commencement of the Act and (2) the validity and effect of any such adoption made before the commencement of the Act, shall be determined as if the Act had not been passed. While the first implication is negative in its character inasmuch as it prevents the provisions of the Act from 'affecting' the adoptions made before the commencement of the Act in any manner whatsoever, the second implication in positive in its command inasmuch as it affirms that the 'validity and effect' of such adoptions shall be determined 'as if the Act had not been passed'. Thus section 30 purports to save by its negative and positive implications all the legal consequences and features of the adoptions made before the commencement of the Act. Since the adoption under our consideration is made before the commencement of the Act we shall presently consider how these negative and positive implications of Section 30 work out. Let us for the present go back to the legal position of the parties when the adoption was made. According to our findings recorded above, the defendant, was adopted by the custom known as 'Goda Datta' adoption. We have also found that one of the consequences of the 'Goda Datta' adoption is that the said adoption can be unilaterally revoked by any of the parties to the adoption. It, therefore, follows that when the adoption was made on 18-3-1956, it was revocable and stood the chance of being revoked at any time after it was made. Therefore, the defendant's status as an adopted son of the plaintiff was defeasible. Now according to Section 30, an adoption made before the commencement of the Act is not affected by anything contained in the Act which means that all the legal incidents of the adoption in question shall remain unaffected. Therefore, if before the commencement of the Act, the adoption was defeasible and was likely to be revoked at anytime, it could not become absolute by the application of the Act because the first part of Section 30 specifically says that adoption made before the commencement of the Act is not affected by 'anything' contained in the Act. The second part of Section 30 says that the validity and effect of any adoption, which is made before the commencement of the Act, shall be determined as if the Act had not been passed. In other words, this part of the section means that the validity and effect of the adoption shall remain as they were before the commencement of the Act. So far as this case is concerned, one of the effects of the adoption, which is in dispute, is its revocability and if that is so, the second part of Section 30 specifically saves that effect. However, the contention of Shri Nanavati is that the word 'effect' only means that effect which is contemplated by Section 12 of the Act. According to him, the element of revocability of the adoption is not its effect, but is merely its characteristics. We find that this argument is fallacious. Though marginal note found in Section 12 refers to the effects of adoption, we find that Section 12 is not the only section which contemplates the effects of adoption. If a reference is made to all those sections of the Act, which are from Sections 12 to 17, we find that each one of them directly or indirectly contemplates an 'effect' of adoption. Thus; effects of adoption which are contemplated by these various sections are nothing but the legal consequences flowing from an adoption. So far as the word 'effect' is concerned, it is difficult to comprehend that it does not refer to the legal consequences which flow from a valid adoption. The effect is, no doubt, one of the characteristics of an adoption, but that does not help the defendant in any manner because the word 'characteristic' is of a larger import. 'Effect is the thing which results from a cause and, therefore, if adoption is the cause then the legal consequence flowing from the said cause adoption would be its effect. In this connection, we may refer to Corpus Juris Secundum, Volume 28, page 855 of 1941 Edition, wherein the meaning of the word 'effect' as a noun is given as under:
'A result produced. A consequence produced; a result that follows after a thing previously spoken of its completed; a result or conclusion which follows a given act; that which follows from an antecedent called the cause; the result or consequence of an act, or that which is produced by an antecedent cause.'
The Webster's Collegiate Dictionary gives the following meaning to the word 'effect' -
'1. That which is produced by an agent or cause; immediate result. 2. Purport; intent as, to this effect. 3. State or fact of being performed; as, to give effect to, to take effect, etc. 4. A distinctive impression produced, as by a work of art, by conduct, etc., as, to act for effect. 5. In pl. Goods; personal estate - syn. Consequence.'
This therefore, shows that the word 'effect' is comprehensive enough to cover all the consequences which follow from an act, the act in this case being the adoption. Legal consequence of revocability of that adoption is obviously an 'effect' of that adoption and if that is so. Section 30 says that the validity and effect of this adoption shall be determined 'as if this Act had not been passed.' If this interpretation of Section 30 be true, then it follows that neither Section 4 nor Section 15 nor any other section of the Act can in any manner affect the adoption of the defendant which was defeasible by revocation before the Act came to be applied.
35. Even otherwise we find that so far as the vested or accrued right are concerned, no legislation should be so construed as to affect those rights unless the Act makes a specific express provision for giving retrospective effect. So far as this principle is concerned, the same cannot be in dispute, and is, in fact, not in dispute. However, the contention of Shri Nanavati was the plaintiff's right to revoke the adoption cannot be considered either as a vested right or as an accrued right. In the opinion of Shri Nanavati this right of revocation of the adoption would be vested or accrued only when the plaintiff prefers to exercise her option to revoke the disputed adoption. In his view, since the plaintiff has not exercised her option to revoke this adoption before the Act came into force, her right of revocation of this adoption did not become vested or accrued and, therefore, it was not saved from the operation of the various provisions of the Act. Here also we find that Shri Nanavati is in serious error as regards the meaning of 'accrued or vested right'. What exactly is meant by an 'accrued or vested right' which cannot be taken away by the Legislature unless it manifests intention of doing so either expressly or by necessary implications? In our opinion, a right becomes 'vested' or 'accrued' when it is found to be executable i.e., when it ceases to be inchoate and becomes totally independent of a contingency. Such a right thereafter becomes the property of its possessor and its vested character is not dependent upon its actual execution. If the right is executable, it does not matter whether it is executed at present or in future. Therefore, the idea that a right becomes vested or accrued only when it is executed is found to be totally devoid of merits. It is undoubtedly a novel idea but its novelty does not add to the merits of the contention in any manner. Such an executable right can arise in favour of a party as a result of a contract or a statute or by operation of law. Therefore, when a person enters into a secular arrangement with another relying upon some well known consequences which follow from that arrangement, then such a person gets a vested interest in taking advantage of that arrangement and consequences arising therefrom for the simple reason that but for those advantages, who would not have ever made any commitment in form of the arrangement in question. So far as the facts of this case are concerned, we find that the plaintiff entered into an arrangement called the customary adoption of the defendant with an understanding arising from the well known consequences of the custom, that she would be entitled to revoke the adoption at any time in future. Parties are presumed to know the consequences of this customary adoption. It was with this knowledge that the plaintiff preferred to adopt the defendant in the year 1956. If she knows that she would not be entitled to revoke the adoption. She would have in all probabilities taken a different course, but since the adoption was made in the customary form, the consequences of which were known to both the parties, it should be presumed that this customary form of adoption was resorted to only with an understanding that the adoption could be revoked at any time if the same was not found suitable. Therefore, on the day on which the adoption was made, the plaintiff got a vested right to revoke the same. The executability of that right did not depend upon any contingency and soon after adopting the defendant in the customary form, it was open to the plaintiff to revoke that adoption unilaterally and in spite of the opposition of the defendant. We, therefore, find that the plaintiff's right to revoke this adoption was absolute and if that is so, the provisions of Hindu Adoptions and Maintenance Act, cannot be construed so as to affect any right retrospectively unless we find anything either expressly or by necessary implications going to suggest that the Legislature had intended to restrict such vested rights. It need not be said that rule against retrospection is based on the presumption that the Legislature does not intend what is unjust or that the transactions which have already vested title to property should be reopened or thrown in doubt. This rule has got sufficient judicial recognition and, therefore, we shall now proceed to consider whether there is any provision in the Act going to suggest that the legislature expressly or by necessary implications intended to give retrospective effect to these provisions.
36. However, before touching this question, we would dispose of the consideration of some of the citations relied upon by Shri Nanavati in support of his contention that such a right is not a vested right . He drew our attention to the decision given by the Supreme Court in the case of Trimbak Damodhar Raipurkar v. Assaram Hiraman Patil, reported in AIR 1966 SC 1758. In that case the question was whether a landlord who has given a notice to his tenant terminating his lease would get any accrued right to obtain possession of the premises in question. The facts of that case show that before the term of the tenancy could expire, an amendment Act came into force which deprived the landlord from getting the vacant possession of the property. Their Lordships of the Supreme Court on those facts, took the view that right of the landlord to take possession did not accrue merely on giving a notice of eviction. It accrued in his favour on the date when the lease expired. Therefore, their Lordships of the Supreme Court observed that it is only after the period specified in the notice is over and the tenancy has in fact expired that the landlord gets a right to eject the tenant and to obtain possession of the land. In these circumstances, their Lordships expressed an opinion that before the tenancy could expire, the amending Act of 1952 stepped in and deprived the landlord of his right to obtain possession. That being the position in the opinion of their Lordships of the Supreme Court, it was not possible to contend successfully that the landlord had any accrued right to get the possession. Obviously, the facts of that Supreme Court case have absolutely no relevance to the facts of the present case. Their Lordships have found that merely by giving a notice, the landlord could not claim any right to get possession. He could claim possession only after the tenancy expired. So far as this case is concerned, the plaintiff's rights to revoke the adoption made in the year 1956 was absolute and did not admit of any contingency. On the very next day of the adoption, the plaintiff could have exercised her right of revocation. Therefore, the decision relied upon by Shri Nanavati, is not relevant to the facts of the present case. Another decision relied upon was a Bombay decision given in the case of Sitabai Ramchandra v. Ramchandra Raghunath, reported in : AIR1958Bom116 . That was a case of desertion under the Bombay Hindu Divorce Act (22 of 1947). The question was whether a continued desertion of one spouse for a period of 4 years confers any right to take divorce in favour of the deserted spouse. On this question, the learned Judges held that in matrimonial law, desertion by one party to the marriage does not confer upon the other party a right of divorce. It was further observed that desertion is a matrimonial offence, but in its very it is very different from other matrimonial offences like adultery or cruelty. It was further found that in its very nature, desertion is a continuing marital offence and it is not completed until a suit is filed for divorce on the ground of desertion. Therefore, even though the desertion might have taken place for a period of 4 years, no right to obtain divorce under the Bombay Act was acquired by the party deserted until he filed a suit because he had to know that the desertion continued right up to the date he filed the suit. Obviously, the facts of the case, which is under our consideration, are quite different. The difference is too obvious to be emphasised. We, therefore, find that even this decision is of no help to the appellant. Our attention was also drawn to the Privy Council decision given in the case of Abbott v. The Minister for Lands, reported in 1895 AC 425. In this case it is observed that the mere right, existing at the date of a repealing statute, to take advantage of provisions of the statute repealed is not a 'right accrued' within the meaning of the usual saving clause. But the facts of the case to which this principle was applied were that the appellant had effected a conditional purchase under Section 22 of the Crown Lands Alienation Act, 1861, of land adjoining to Crown land which had been previously granted to him in fee simple under Section 25. On these facts it was held that the appellant did not become thereby a holder of an original conditional purchase within the meaning of Section 42 of 48 Vict. No. 18 so as to obtain the right to make additional conditional purchases under that section. It was found by their Lordships of the Privy Council that such a right could not be construed as a right accrued. This principle is, in our opinion, not relevant to the facts of the present case, which show that the respondent-plaintiff had an absolute right to revoke the adoption in question. We, therefore, find that none of the citations on which the reliance is put, is in any manner helpful to the appellant-defendant.
37. We shall now proceed to consider whether there is anything in Section 4 of 15 of the Act, going to suggest that the legislature intended that their operation should be retrospective. In this connection, it was vehemently argued that Section 15 is absolute in its terms and specifically provides that no adoption which has been validly made, can be cancelled by either of the adoptive parents or by the person adopted. Shri Nanavati pointed out to us that since the section uses a perfect present tense by using the words 'has been' validly made, it should be held that it has an impact over all the adoptions which have been made in the past including the adoptions made before the commencement of the Act. Now the construction and true meaning of the expression 'has been' cannot be properly spelt out without reference to the context in which Section 15 is placed in the statute. It should be remembered that this Section 15 finds its place in Chapter II which is as regards 'adoption'. Chapter II begins with Section 5 which provides that no adoption shall be made after the commencement of the Act except in accordance with the provisions contained in the Chapter. Section 6 provides for the requisites of a valid adoption. Sections 7, 8 and 9 provide for the capacity of a male and a female Hindu to 'take' and to 'give' in adoption. Section 10 provides for persons who may be adopted. Section 11 provides for other conditions for a valid adoption. Section 12 provides for the effects of adoption. Section 13 provides for the right of adoptive parents to dispose of their properties. Section 14 provides for the determination of adoptive mother in certain cases and then follows Section 15 which puts a bar to the cancellation of adoption. The scheme of this Chapter, therefore, makes it clear that all the sections which precede Section 15 provide for the different aspects of an adoption which is made under the Act. Section 15 which follows these sections, therefore, refers to the cancellation of those adoptions which are made in compliance with the provisions of the foregoing sections, and it is for this reason that it uses the present perfect tense with reference to the adoptions already made. The concept of 'cancellation' presupposes the existence of a complete act which is sought to be cancelled, and hence while providing for cancellation of that act a present perfect tense has to be used. Such a use in Section 15 is referable only to those adoptions which have been made under the foregoing provisions of the Chapter in which the section is placed. Therefore, the use of present perfect tense in Section 15 does not necessarily mean that the section purports to convey a retrospective effect.
38. However, in our opinion, this discussion would be merely academic because as expressed by us earlier. Section 15 and other sections of this Act are controlled by the provisions of Section 30, which is a saving clause. In our opinion, therefore, there is absolutely no substance in this part of the contention of Shri Nanavati. We, therefore, hold that the consequence of revocability of the adoption of the defendant is in no manner affected by any of the provisions of the Hindu Adoptions and Maintenance Act of 1956.
39. Coming to the last point, the contention of Shri Nanavati is that since the defendant's adoption is revoked only after the suit is instituted, it should be held that the plaintiff had no cause of action when the suit was filed. It is undoubtedly true that when the suit was filed, the plaintiff had not make the written declaration, which is found at Ex. 292, but we find that the learned trial Judge was correct when he applied the ratio of the decision given by the High Court of Bombay in the case of Laxmibai Wamanrao v. Wamanrao Govindrao, reported in : AIR1953Bom342 , to the facts of the present case. The learned Judges of the Bombay High Court have held in that case that ordinarily the rule is that a Court should give its decision on the facts and circumstances as they existed at the date of the institution of the suit or at the date of any subsequent amendment of the pleadings and should not take notice of events which have happened after such date. After accepting this ordinary rule, they have further observed that in spite of this rule, the Courts have power in proper cases to take notice of events subsequent to the suit in order to shorten litigation, avoid unnecessary expenditure and do complete justice between, the parties. If facts of this case are taken into account, it will be found that even before the defendant filed his written statement, the plaintiff made an unequivocal declaration as to the revocation of the adoption of the defendant. The plaintiff also took care to give notice of this revocation to the defendant's guardian and his brother. The defendant has filed his written statement with reference to this allegation of revocation and the whole suit has proceeded on the basis that by virtue of this document of written declaration, the plaintiff has revoked the adoption. Under the circumstances, the evidence recorded in this case also shows that both the parties have offered evidence and have focused their attention on the question whether revocation has in fact taken place and whether such a revocation can legally be made by the plaintiff. Under these circumstances, it would not help the ends of justice to be too technical about the matter. We, therefore, find that it is not possible to non-suit the plaintiff on this ground
40. The result, therefore, is that this appeal should fail. As stated above, the cross-objections also fail. We, therefore, dismiss this appeal with costs and confirm the decree passed by the trial Court. The appointment of the receiver which is made by this Court is hereby cancelled. The receiver is hereby directed to hand over the possession of the properties received by him to those from whom he has taken over the possession of these properties within ten (10) weeks from now and also to report to the trial Court about the same. The said possession shall be handed over by the receiver to the concerned persons through the trial Court. He is further directed to submit the complete accounts of the administration done by him to the trial Court within three (3) months or within such time that may be extended by the trial Court, 29th April, 1970
41. So far as Civil Application No. 2714 of 1969 is concerned, the parties have to-day filed compromise pursis. Order in accordance with the consent terms, found in the said pursis. No order as to costs.
42. Appeal dismissed.