Anirudh Jagdeorao vs Babarao Irbaji and others

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1983 Supreme(Bom) 14

IN THE HIGH COURT OF BOMBAY
(Aurangabad)
D.P. Madon C.J., Pendse M.L. and Mehta D.N. JJ.
Anirudh Jagdeorao …. Appellant.
Versus
Babarao Irbaji and others …. Respondents.
Judgment of Full Bench dated 20–1-1983 in Second Appeal No. 1063 of 1973.
Advocate Appeared:
For appellant-G. D. Deshpande with A. G. Mukhedkar and A. M. Dabir.
For respondents Nos. 1 to 3- B. S. Deshmukh.

Headnote:
HINDU ADOPTIONS AND MAINTENANCE ACT, 1956 - SECTION 3(A) - SECTION 4 - SECTION 10(III) AND (IV) - CUSTOM OR USAGE - BOMBAY SCHOOL OF HINDU LAW (MAYUKHA) - INTERPRETATION - VALIDITY OF ADOPTION OF MARRIED PERSON OR PERSON OVER 15 YEARS OF AGE - APPLICABILITY OF CUSTOM OR USAGE TO PARTIES - EVIDENCE OF CUSTOM OR USAGE - INTERPRETATION OF STATUTORY PROVISIONS - JUDICIAL PRECEDENTS - FULL BENCH REFERENCE.
Fact of the Case:

The appellant, Irbaji, a Hindu belonging to the Maratha community, adopted Ambubai, a married woman, when he was over 15 years of age. After Ambubai's death, the appellant filed a suit for a declaration that he was entitled to a share in the property left by her. The trial court decreed the suit, but the appellate court reversed the decree, holding that the adoption was invalid under the Hindu Adoptions and Maintenance Act, 1956 (the Act). The appellant filed a second appeal, which was referred to a Full Bench by a Division Bench of the High Court.
Finding of the Court:

The Full Bench held that the expressions “custom” and “usage” in section 3(a) of the Act include not only customs and usages in the ordinary sense which have obtained the force of law among Hindus in any local area, tribe, community, group or family, but also texts, rules and interpretation of Hindu Law which have been continuously and uniformly observed and have obtained the force of law among Hindus in any local area, tribe, community, group or family. The Full Bench further held that the adoption of a married person or a person over 15 years of age is valid if it is permitted by a custom or usage applicable to the parties and that such custom or usage need not be pleaded or proved by leading independent evidence.
Issues: 1. Whether the expressions “custom” and “usage” in section 3(a) of the Hindu Adoptions and Maintenance Act, 1956 include texts, rules and interpretation of Hindu Law? 2. Whether the adoption of a married person or a person over 15 years of age is valid if it is permitted by a custom or usage applicable to the parties? 3. Whether such custom or usage need be pleaded or proved by leading independent evidence?
Ratio Decidendi: 1. The definition of “custom” and “usage” in section 3(a) of the Act is exhaustive and signifies any rule which, having been continuously and uniformly observed for a long time, has obtained the force of law among Hindus in any local area, tribe, community, group or family, provided that the rule is certain and not unreasonable or opposed to public policy. 2. The Act makes an exception to the general rule that a person cannot be adopted if he or she is married or has completed the age of 15 years, by providing in clauses (iii) and (iv) of section 10 that such an adoption is valid if it is permitted by a custom or usage applicable to the parties. 3. Such custom or usage need not be pleaded or proved by leading independent evidence, as it is deemed to be incorporated in the general law and does not require proof in each individual case.
Final Decision: The Full Bench answered the question referred to it in the affirmative, holding that the adoption of a married person or a person over 15 years of age is valid if it is permitted by a custom or usage applicable to the parties and that such custom or usage need not be pleaded or proved by leading independent evidence.

JUDGMENT - Madon C. J.-This second appeal is filed against the judgment and decree in first appeal of the District Judge, Nanded, from the decree in a suit decided by the Joint Civil Judge, Junior Division, Nanded. When this second appeal reached hearing before Masodkar J., in view of the fact that an earlier second appeal being Second Appeal No. 619 of 1971 in which an identical question of law was raised has been referred to a Division Bench by S. K. Desai J., Masodkar J., also passed an order directing that this second appeal should be heard along with Second Appeal No. 619 of 1971. The said Second Appeal No. 619 of 1971 reached hearing before a Division Bench consisting of Chandurkar and Bhonsale JJ., who, in view of the conflict between the judgments of two different Division Benches of this High Court, framed a question of law and referred it for decision by a larger Bench. Parties to the said Second Appeal No. 619 of 1971, however, compromised the said appeal. Meanwhile, the present appeal reached hearing before Shah and S. J. Deshpande JJ., who, in view of the aforesaid order of reference to a Full Bench made by Chandurkar and Bhonsale JJ. also referred the present appeal to the Full Bench framing an identical question of law.

2. The question of law which has been referred to the Full Bench in this appeal is as follows :-

“Whether the words 'custom' or 'usage' occurring in section 10 (iii) and section 10 (iv) of the Hindu Adoptions and Maintenance Act, 1956, read along with section 3 (a) of the said Act includes within its sweep the rules of the Bombay School of Hindu Law (Mayukha) or interpreta-tion of the text thereof by the Courts.”

3. The facts which have given rise to this question of law may now be stated. One Irbaji, who was a Hindu belonging to Maratha community.boys over 15 years of age as also of married persons, it was not open to the appellant to set this up by way of custom. The learned District Judge also found that the oral evidence of custom led by the appellant was insufficient. The learned District Judge accordingly held that the adoption of the appellant by the said Ambubai was, therefore, invalid. On this basis he reversed the decree of the trial Court and gave declaration that the First plaintiff and the First defendant were each entitled to a one-half share in the said plot of land and directed partition of the said plot of land. He, however, dismissed the plaintiffs' claim for the value of their shares of the crops and grass standing on the said plot of land at date of Ambubai's death on the ground that there was no evidence to support this claim. The appellant approached this High Court in second appeal.

5. In order to appreciate the question of law which has been referred to us and the arguments advanced at the bar, it is necessary now to set out the relevant provisions of the said Act. The said Act came into force on December 21, 1956. As its long title shows, it was an Act to amend and codify the law relating to adoptions and maintenance among Hindus. Sec-tion 3 is the interpretation clause. Clause (a) of section 3 defines the expres-sions “custom” and “usage”. The said clause provides as follows :-

“Definitions:-

3. In this Act, unless the context otherwise requires,-

(a) the expressions 'custom' and 'usage' signify any rule which, having been continuously and uniformly observed for a long time, has obtained the force of law among Hindus in any local area, tribe, community, group or family:

Provided that the rule is certain and not unreasonable or opposed to public policy:

and

Provided further that, in the case of a rule applicable only to a family, it has not been discontinued by the family;”

Section 4 gives an overriding effect to the provisions of the said Act unless otherwise expressly provided in the said Act. Section 4 is in the following terms :

“Overriding effect of the Act:-

4. Save as otherwise expressly provided in this Act :

(a) any text, rule or interpretation of Hindu law or any custom or

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