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1958 Supreme(MP) 222
High Court Of Madhya Pradesh
P. V. Dixit, J.
MOTIRAM BHERA KHATI - Appellant
Versus
SUKMA BAI, BHAGIRATH KHATI - Respondents
Second Appeal 195 Of 1954
Decided On : 09/22/1958
N.A.Phadke, S.B.Gadkari, S.D.SANGHI
In the case of permissive customs, the test of invariability cannot be rigidly applied, and the necessary proof in each case will depend on the nature of the custom alleged. 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.
Headnote:
ADOPTION - CUSTOM - Khati Community - Adoption of Orphan - Permissible and Valid - Evidence - Sufficiency - Burden of Proof - Customary Law - Proof of Custom - Instances - Invariability - Permissive Custom - Proof - General Consensus of Opinion - Absence of Instances - Effect.
Fact of the Case:
Plaintiff, an orphan, claimed to have been validly adopted by the defendant, Bhuribai, the widow of Bhura, according to custom and law. The defendant denied the adoption, asserting that she never adopted the plaintiff and that the adoption of an orphan was not permissible under their community's customs.
Finding of the Court:
The court found that the plaintiff was validly adopted by the defendant on 31st January, 1951, with due performance of the requisite rites and ceremonies, as evidenced by the deed of adoption and corroborated by witness testimonies. The court also held that the adoption of an orphan was permissible and valid according to the custom of the Khati community to which the parties belonged, based on the evidence of several witnesses and the absence of any rebuttal evidence from the defendant.
Issues: 1. Whether there was an adoption ceremony on 31st January, 1951, in which the plaintiff's brother gave him in adoption to Bhuribai? 2. 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?
Ratio Decidendi: 1. The court relied on the testimonies of witnesses, the deed of adoption, and the absence of any valid reason to disbelieve the evidence to conclude that there was an adoption ceremony on 31st January, 1951, in which the plaintiff was given in adoption to Bhuribai. 2. The court held that the adoption of an orphan was permissible and valid according to the custom of the Khati community based on the evidence of several witnesses, including members of the community who testified to the existence of such a custom, and the absence of any rebuttal evidence from the defendant. The court noted that the custom was permissive and not obligatory, and therefore, the absence of numerous instances of orphan adoption did not negate its existence.
Final Decision: The court allowed the appeal, set aside the decisions of the lower courts, and passed a decree declaring the plaintiff as the validly adopted son of Bhura and prohibiting the respondents, the legal representatives of Bhuribai, from interfering with the plaintiff's rights as an adopted son of Bhura. The plaintiff was awarded costs throughout.
( 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 adoption ceremony. 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 timeof 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 whethe
