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Wednesday, January 30, 2013

Shri Sant Eknath Maharaj = custom, adoption, scope of Or.18.rule 16 c.p.c., appreciation of evidence =“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”.;Undoubtedly, the natural parents had signed alongwith 7 witnesses and not at the place where the executants could sign. But it is not a case where there were no witnesses except the executants. Instead of two witnesses, seven attesting witnesses put their signatures.Mere technicalities therefore, cannot defeat the purpose of adoption, particularly when the defendants/respondents have not made any attempt to disprove the said document. No reference was ever made either by them, or by their witnesses, to this document i.e. registered adoption deed. ;The legal system has laid emphasis on value provided by each witness, rather than the multiplicity or plurality of witnesses. It is quality and not quantity, which determines the adequacy of evidence as has been provided by Section 134 of the Evidence Act. Where the law requires the examination of at least one attesting witness, it has been held that the number of witnesses produced, do not carry any weight.; the settled legal proposition, that if a party wishes to raise any doubt as regards the correctness of the statement of a witness, the said witness must be given an opportunity to explain his statement by drawing his attention to that part of it, which has been objected to by the other party, as being untrue. Without this, it is not possible to impeach his credibility. Such a law has been advanced in view of the statutory provisions enshrined in Section 138 of the Evidence Act, 1872, which enable the opposite party to cross-examine a witness as regards information tendered in evidence by him during his initial examination in chief, and the scope of this provision stands enlarged by Section 146 of the Evidence Act, which permits a witness to be questioned, inter-alia, in order to test his veracity.; The appellate court has erred by considering the irrelevant material, while the most relevant evidence, i.e., the adoption ceremony and the adoption deed, have been disregarded on the basis of mere surmises and conjectures. The correctness or authenticity of adoption deed is not disputed. What is disputed is that the natural parents of adoptive child who were definitely executing parties of the deed have signed as witnesses alongwith 7 other witnesses. In such a fact-situation, by gathering the intention of the parties and by reading the document as a whole and considering its purport, it can be concluded that the adoption stood the test of law. We think that cause of justice would be served, instead of being thwarted, where there has been substantial compliance of the legal requirements, specified in Section 16 of the Act 1956. When substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred and the courts may in the larger interests of administration of justice may excuse or overlook a mere irregularity or a trivial breach of law for doing real and substantial justice to the parties and pass orders which will serve the interest of justice best. In view of the above, the appeal succeeds and is allowed. The judgments and decrees of the appellate courts are set aside and judgment and decree of the trial court is restored. There shall be no order as to costs.


                                                   REPORTABLE




                        IN THE SUPREMECOURT OF INDIA
                        CIVIL APPELLATE JURISDICTION


                        CIVIL APPEAL NO. 2058 OF 2003




      Laxmibai (Dead) thr. Lrs. & Anr.                   … Appellants




                                   Versus




      Bhagwantbuva (Dead) thr. Lrs. & Ors.         … Respondents






                               J U D G M E N T


      Dr. B.S. CHAUHAN, J.



       1.   This appeal has been preferred against the impugned judgment and
      order dated 9.2.2001, passed by the High Court of Judicature at Bombay
      (Aurangabad Bench) in Second Appeal No. 906 of 1980, by way  of  which
      the High Court has affirmed  the  judgment  and  order  of  the  First
      Appellate Court in Regular Civil Appeal No.  92  of  1977,  dismissing
      Civil Suit No. 52 of 1971, which stood allowed by the trial court vide
      judgment and decree dated 15.3.1977.


        2. The facts and circumstances giving rise to this appeal are :
      A.    One Narayanbuva Gosavi, a descendant of Shri Sant Eknath Maharaj
      was vested with the exclusive right to carry the Palki and Padukas  of
      Sri Sant Eknath Maharaj from Paithan to  Pandharpur  at  the  time  of
      Ashadi Ekadashi.  
He died in 1951, leaving behind his  widow,  namely,
      Smt. Laxmibai. 
Krishnabuva. Brother of  Narayanbuva  had  pre-deceased
      him leaving behind his widow, Smt. Gopikabai.


      B.    After the death of Narayanbuva, the appellant Smt. Laxmibai, was
      vested with the exclusive right to carry the Palki  and  Padukas.
The
      respondents herein, who  are  also  descendants  of  Sri  Sant  Eknath
      Maharaj, 
served  notice dated  6.5.1971  upon  Shri   Vasant  Bhagwant
      Pandav, stating that he must not give his son Raghunath, aged 8 years, in adoption to Smt. Laxmibai.


      C.    On 10.5.1971, some of the respondents herein, filed  Civil  Suit
      No. 47 of 1971 against Shri Vasant Bhagwant Pandav, Smt. Laxmibai  and
      Smt. Gopikabai, restraining them from effectuating  the   adoption  of
      Raghunath. The aforementioned  suit  was  withdrawn  subsequently,  in
      September 1974.
         
It was during the  pendency  of  the  said  suit  filed  by  the
      respondents, that on 11.5.1971, Raghunath was adopted by Smt. Laxmibai
      after the performance of all requisite ceremonies which were conducted
      in the presence of a huge crowd, wherein the  process  of  giving  and
      taking of the child by the parents of Raghunath and by  Smt.  Laxmibai
      respectively, was held. 
The ceremony was performed by  a  priest,  and
      several photographs were also taken on this occasion. On the same day,
      an adoption deed was executed and registered in this respect, and  the
      said deed was duly signed by seven witnesses. 
Owing to the  fact  that
      the respondents had tried to create some hindrance in the  performance
      of  the duties of the appellants, in relation to  carrying  the  Palki
      and Padukas, Smt. Laxmibai and Smt. Gopikabai filed  Suit  No.  52  of
      1971, against the respondents seeking a decree of perpetual injunction
      preventing them from causing any obstruction or  interference  in  the
      exercise of their exclusive rights, on 14.6.1971.


      D.    The suit was contested by the respondents and a large number  of
      issues were framed.  The trial court decreed the  suit,  holding  that
      the adoption of  Raghunath  by  Smt.  Laxmibai  was  valid;  that  the
      adoption deed was a legal document which  could  in  fact,  be  relied
      upon; that the ceremony of giving and taking of  the  child  and  that
      performance of all other religious ceremonies was conducted ; and also
      that photographs taken at the time of adoption could be  relied  upon.
      The said adopted child Raghunath, inherited all the  property of  Smt.
      Laxmibai when she died before the trial of the  suit  even  commenced.
      The inheritance was held to be valid, as it was held that there was no
      custom of adopting of a male child only from within  the  said  family
      and, consequently, the adoption of Raghunath  by  Smt.  Laxmibai  from
      outside, was upheld.


      E.    Aggrieved, the respondents preferred Civil Appeal No. 92 of 1977
      and for certain reliefs, the appellants also  filed  a  cross  appeal.
      Various points were considered by the  First  Appellate  Court,  after
      which, the decree of the Civil Court was reversed  vide  judgment  and
      decree dated 1.8.1980, by which it was held that the  respondents  had
      proved, that there did in fact exist a  custom  which  prohibited  the
      taking of a male child in adoption from outside. 
The  adoption  itself
      was  suspicious  as  independent  witnesses  were  not  examined.  The
      witnesses who proved the validity  of  the  adoption  were  interested
      witnesses, and the adoption deed was also suspicious.


      F.    Aggrieved, the appellants preferred a Second Appeal,  which  was
      dismissed by the High Court vide impugned judgment concurring with the
      First Appellate Court.
            Hence, this appeal.


      3.     Shri  Aarohi  Bhalla,  learned  counsel   appearing   for   the
      appellants, has submitted
that there is a presumption of validity with
      respect to the registered adoption deed under  Section  16  of   Hindu
      Adoptions and Maintenance Act, 1956 (hereinafter referred to  as  ‘the
      Act 1956’).  
Therefore, the appellate courts  committed  an  error  in
      doubting the validity of the registered adoption deed. The  burden  of
      rebutting the aforementioned presumption which was on the respondents,
      was not discharged effectively, as they examined only  two  witnesses,
      Narharibuva (DW.1) and Somnath (DW.2), and neither of  them  made  any
      reference to the said deed at all. 
Therefore, in the  absence  of  any
      attempt on the part of the respondents to rebut the said  presumption,
      holding that the adoption deed was  suspicious,  is  not  sustainable.
      
The appellate courts have categorically held, that  in  the  past  375
      years, a total of four adoptions have taken place, and   that  it  was
      only in each of these cases that a male child from within  the  family
      was adopted, and not one from  outside.  
Thus,  the  appellate  courts
      committed an error in holding that there was a custom to this  effect.
     
 In the absence of any evidence, a statement alleging that  either  one
      of the said adoptive parents wanted to take a child in  adoption  from
      outside, and that the  same  was  attempted,  must  not  be  accepted.
     
 Moreover, the occurance of only  four  instances,  over  a  period  of
      almost four centuries, is not sufficient to establish the existence of
      a custom. 
The non-examination of Smt. Laxmibai during the trial of the
      suit on account of her death, prior to the commencement of the  trial,
      cannot be taken as a circumstance against the  appellants.  Thus,  the
      appellate courts have erred in taking  such  a   perverse  view.   
The
      photographer present at the adoption ceremony, who was examined by the
      appellants before the trial court, was not asked any questions in  the
      cross-examination by the respondents, with respect to any doubts  they
      had  regarding  the  genuineness  of  either  the  negatives,  or  the
      photographs of the ceremony. 
In the absence of  resorting  to  such  a
      course by the respondents, the appellate courts could not  have  drawn
      any adverse inference as regards his deposition, particularly when the
      photographer had  proved  the  existence  and  validity  of  both  the
      negatives, and the photographs.  
Thus, the judgments  and  decrees  of
      the appellate courts are liable to be set aside, and the  judgment  of
      the trial court deserves to be restored.


      4.    Per contra, Shri Aniruddha P. Mayee and Shri Devansh  A.  Mohta,
      learned counsel  appearing  for  the  respondents,  have  opposed  the
      appeal, contending that the first appellate court has the right to re-
      appreciate all material on record, after which it has rightly  reached
      a conclusion as regards the suspicious nature of the adoption deed and
      adoption ceremonies, and has also rightly concluded, that 
since   over a period of 375 years only four adoptions have taken place, and as  in each case, a male child was  adopted  only  from  within  the  family, there certainly existed a custom which did not permit the adoption  of   a male child from outside the family.
Such findings do not warrant any
      interference by this court. The appeal lacks merit, and is  therefore,
      liable to be dismissed.


      5.    We have considered the rival submissions made by learned counsel
      for the parties, and perused the record.

      6.    Section 3(a) of the Act 1956 defines 'custom' as follows:


           “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”.




      7.    Custom is an established practice at variance with  the  general
      law.  A custom varying general law may be a general, local, tribal  or
      family custom.  A general custom  includes  a  custom  common  to  any
      considerable class of persons. A  custom  which  is  applicable  to  a
      locality, tribe, sect or a family is called a special custom.
            Custom is a rule, which in a particular  family,  a  particular
      class, community, or in a particular district, has owing to  prolonged
      use, obtained the force of law. Custom has  the  effect  of  modifying
      general personal law, but it does not override statutory  law,  unless
      the custom is expressly saved by it.
            Such custom must be ancient, uniform,  certain,  continuous  and
      compulsory. No custom is valid if it is illegal, immoral, unreasonable
      or opposed to  public  policy.  He  who  relies  upon  custom  varying
      general law, must plead and prove it. Custom must  be  established  by
      clear and unambiguous evidence.
      8.    In Dr. Surajmani Stella Kujur v. Durga Charan Hansdah  AIR  2001
      SC 938,
this Court held that custom, being in derogation of a  general
      rule, is required to be construed strictly.
A  party  relying  upon  a
      custom, is obliged to establish it by way  of  clear  and  unambiguous
      evidence. (Vide: Salekh Chand (Dead) thr. Lrs. v. Satya Gupta  &  Ors.
      (2008) 13  SCC 119).


      9.    A custom must be proved to be ancient, certain  and  reasonable.
      The evidence adduced on behalf of the party concerned must  prove  the
      alleged  custom  and  the  proof  must  not  be   unsatisfactory   and
      conflicting.
A custom cannot be extended by analogy or logical process
      and it also cannot be established by a priori  method.
Nothing  that
      the Courts can take judicial  notice  of  needs  to  be  proved.
When
      a custom has been judicially recognised by the Court, it  passes  into
      the law of  the  land  and  proof  of  it  becomes  unnecessary  under
      Section 57(1) of the  Evidence  Act,  1872.
Material customs must  be
      proved   properly   and   satisfactorily,   until   the   time    that
      such custom has, by way of frequent  proof  in  the  Court  become  so
      notorious, that the Courts take judicial notice  of  it.
(See  also:
      Effuah Amissah v. Effuah Krabah, AIR 1936 P.C. 147; T. Saraswati Ammal
       v. Jagadambal & Anr., AIR 1953 SC 201;  Ujagar Singh v. Mst. Jeo, AIR
      1959 SC 1041; and Siromani v. Hemkumar & Ors., AIR 1968 SC 1299).


      10.   In Ramalakshmi Ammal v.  Sivanatha  Perumal  Sethuraya, 14  Moo.
      Ind. App. 570, it was held:
"It is essential that special usage, which
      modifies the ordinary law of succession is ancient and invariable; and
      it is further essential that such special usage is established  to  be
      so, by way of clear and unambiguous evidence.
It is only by  means  of
      such evidence, that courts can be assured of their existence,  and  it
      is also essential that they possess the conditions  of  antiquity  and
      certainty  on  the  basis  of  which  alone,  their  legal  title   to
      recognition depends."
      11.   In Salekh Chand (supra), this Court held as under:


           “Where the proof of a custom rests  upon  a  limited  number  of
           instances of a comparatively recent date, the court may hold the
           custom proved so as to bind the parties to the  suit  and  those
           claiming through and under them.
           All that is necessary to prove is that the usage has been  acted
           upon  in  practice  for  such  a  long  period  and  with   such
           invariability as to show that it has, by  common  consent,  been
           submitted to as the established governing rule of  a  particular
           locality. A custom 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.”


      12.   In Bhimashya & Ors. v. Smt. Janabi @ Janawwa, (2006) 13 SCC 627,
      this Court held:
             “A custom is  a  particular  rule  which  has  existed  either
           actually or presumptively from time immemorial, and has obtained
           the force of law in a particular locality, although contrary  to
           or not consistent with the general common law of  the  realm……it
           must be certain in respect of its nature generally as well as in
           respect of the locality where it is alleged to  obtain  and  the
           persons whom it is alleged to affect.
                 xx         xx          xx   xx
                 Custom is authoritative, it stands in the place of law, and
           regulates the conduct of men in the most important  concerns  of
           life; fashion is arbitrary and capricious, it decides in matters
           of  trifling  import;  manners  are  rational,  they   are   the
           expressions of moral  feelings. Customs have  more  force  in  a
           simple state of society. Both practice and custom are general or
           particular but the former is absolute, the  latter  relative;  a
           practice may be adopted by a number of persons without reference
           to  each  other;  but  a custom is  always  followed  either  by
           limitation or prescription; the practice of  gaming  has  always
           been followed by the vicious part of society, but it  is  to  be
           hoped for the honour of man that it will never become a custom.”


      (See also: Ram Kanya Bai & Anr. v. Jagdish & Ors. AIR 2011 SC 3258).


      13.   Adoption is made to ensure spiritual benefit for a man after his
      death. The primary object of adoption was  to  gratify  ancestors'  by
      means of annual offerings, and therefore it was  considered  necessary
      that the offerer, must as far as possible be a reflection of the  real
      descendant, and must look as much like a real  son  as  possible,  and
      must certainly not be one, who could never have been a son. Therefore,
      the present body of rules has evolved out  of  a  phrase  of  Saunaka,
      which emphasizes that an adopted male, must be 'the  reflection  of  a
      son'. (Vide: Gherulal Parakh v. Mahadeodas Maiya, AIR 1959 SC 781; and
      V.T.S.   Chandrashekhara   Mudaliar   (Dead   thr.   Lrs.)   &    Ors.
       v. Kulandaivelu Mudaliar,  AIR 1963 SC 185).
      14.   So far as the present case is concerned, the trial court,  after
      appreciating the evidence on record  regarding  custom,  came  to  the
      conclusion  that  the  evidence  led  by  the   defendants/respondents
      revealed, that over a period of 375 years, there had  arisen   only  4
      occasions, when an adoption had taken place,  and  in  each  of  these
      cases, a male child from the same family was adopted.   It  therefore,
      did not establish the existence of any custom. Moreover, while serving
      notice dated 6.5.1971 upon Vasant Bhagwant Pandav, the natural  father
      of Raghunath, asking  him  not  to  give  his  son  in  adoption,  the
      defendants/respondents made no reference to the existence of any  such
      special custom in their family.
The documents  submitted  on  record
      also did not reveal the existence of any  such  custom  prevailing  in
      their family, and no reference was ever made in this regard by them in
      their pleadings.  The burden of proof with respect to this issue,  was
      placed  upon  the  defendants/respondents,  which   they   failed   to
      discharge.  
The First Appellate Court rejected  the  argument  of  the
      appellants/plaintiffs, to the effect that the issue of  the  existence
      of such custom, was neither specifically pleaded, nor proved,  by  the
      defendants/respondents. 
After considering  a  large  number  of  cases
      decided by various courts, the High Court while deciding Second Appeal
      reached the conclusion that there was, in fact, a special custom  that
      existed, which required the taking of a child  from  within  the  same
      family.


      15.   We have appreciated the evidence on record, and are of the  view
      that 
in the present case, only four adoptions have taken place over  a
      time-span of 375 years and even though each time,  a  male  child  was
      taken from within the same family, the same  may merely have been done
      as a matter of convenience, and  may  additionally  also  be  only  to
      prevent the property of the family, from going to an outsider.   
There
      is nothing on record to establish  that  a  child  from  outside   the
      family could not have been adopted, or that any such attempt was  ever
      made, but was resisted and discarded. 
The respondents/defendants could
      not establish that a male child from outside the family could  not  be
      adopted. 
Thus, in view of the  fact  that  the  defendants/respondents
      have never made any reference with  respect  to  the  existence  of  a
      custom prohibiting the adoption of a child from  outside  the  family,
      either in the notice served by them on 6.5.1971 upon  Vasant  Bhagwant
      Pandav, or in their written statement, the mere fact that it may  only
      be for the sake of convenience, that a child  was  taken  in  adoption
      from within the same family on each  of  the  four  occasions  over  a
      period of  375  years,  would  not  be  sufficient  to  establish  the
      existence of a custom in this  regard,  for  the  reason  that  custom
      cannot be proved by way of logic or analogy.  
Thus we hold,  that  the
      finding recorded by the Appellate Courts on this issue, is  not  based
      on any evidence, and that the appellate courts have committed an error
      in holding that the defendants/respondents  have  successfully  proved
      the existence of such special family custom. The appellate courts have
      failed to appreciate  that  a  negative  fact  cannot   be  proved  by
      adducing positive evidence.
This is not a case where there have  been
      adequate judicial pronouncements on  the  said  issue  previously,  of
      which the court could have taken judicial notice.
         
Special  customs;  which  prevail  in  a  family,  a  particular
      community etc., require strict proof  and  the  defendants/respondents
      have failed to prove the same.
            Section 10 of the Act 1956, provides that a child upto  the  age
      of 15 years can be taken in adoption.  Section 11 thereof  prescribes,
      that in the event that a female adopts a male child, there must  be  a
      difference of 21 years between the age of the female and that  of  the
      adoptive child. In the event that there is a registered adoption deed,
      there is a presumption of validity with respect to the said  adoption.
      If these tests are applied, the following situation emerges:
           The adopted child was 8 years of age at the  time  of  adoption.
      Laxmibai, the adoptive mother, was 70 years of  age  at  the  relevant
      time and there is in fact,  a  registered  adoption  deed.
Therefore,
      there is a presumption under Section 16 of the Act 1956, to the effect
      that the aforementioned adoption has been made in compliance with  the
      provisions of the Act, 1956  until  and  unless  such  presumption  is
      disproved.
In the event that  a  person  chooses  to  challenge  such
      adoption, the burden of proof with respect to rebutting the  same,  by
      way of procedures accepted by law, is upon him.
 In the instant  case,
      the defendants/respondents never made any attempt whatsoever, to rebut
      the presumption under Section 16 of the Act 1956.
The defendants have
      examined two witnesses, namely Narharibuva (DWI)  and  Somnath  (DW2).
      We have been taken through their depositions, in which there has  been
      no reference whatsoever to the registered adoption deed, let alone any
      attempt of rebuttal.
Therefore, the defendants/respondents have failed
      to discharge the burden of rebuttal placed upon them, with respect  to
      the presumption of validity of adoption under Section 16  of  the  Act
      1956.


      16.   Undoubtedly, the court while construing a document, is under  an
      obligation to examine the true purport of the  document  and  draw  an
      inference with respect to the actual intention of  the  parties.
The
      adoption deed was registered  on  11.5.1971,  and  the  same  provided
      complete details stating that the adopted child was 8  years  of  age,
      and that the adoptive mother was an old lady of 70 years of age.   The
      adoptive child was related to Smt. Laxmibai.  Her husband had  expired
      in 1951 and it had been  his  desire  to  adopt  a  son  in  order  to
      perpetuate the family line and his name.  The natural  parents of  the
      adoptive child had agreed to give their child in  adoption,   and  for
      the purpose of the same, the requisite ceremony for a  valid  adoption
      was conducted,  wherein the natural parents,  Vasant  Bhagwant  Pandav
      and Smt. Sushilabai Vasantrao Pandav, placed the adoptive child in the
      lap of the adoptive  mother, in the presence  of  a  large  number  of
      persons, including several  relatives.  A  religious  ceremony  called
      “Dutta Homam”, involving vedic rites was performed by  a  pandit,  and
      photographs of the said occasion were also taken. Registration of  the
      adoption deed  was  done  on  the  same  day,  immediately  after  its
      execution, before the concerned Registrar.
The  adoptive  mother  put
      her thumb impression on the deed,  and  it  was  also  signed  by  the
      natural parents of the child.  Additionally, the deed was signed by  7
      witnesses, and all the parties have been identified.
The  registered
      document when read as a whole, makes it evident that  Vasant  Bhagwant
      Pandav and Smt. Sushilabai, the natural parents of the adoptive child,
      have signed the same as attesting  witnesses,  and  not  as  executing
      parties.


      17.   It has been laid down that it would  defy  common  sense,  if  a
      party to a deed could also attest the  same.   Thus,  a  party  to  an
      instrument cannot be a valid attesting witness to the said instrument,
      for the reason, that such  party  cannot  attest  its  own  signature.
      (Vide: Kumar Harish Chandra Singh Deo & Anr. v.  Bansidhar  Mohanty  &
      Ors., AIR 1965 SC 1738).


      18.   A document must be construed, taking into consideration the real
      intention of the parties.  The  substance,  and  not  the  form  of  a
      document, must be seen in order to determine its real purport.


      19.   In Delta International Limited v.  Shyam  Sundar  Ganeriwalla  &
      Anr.,  AIR 1999 SC 2607, this Court held
that  the  intention of  the
      parties is to be gathered from  the document  itself.  Intention  must
      primarily  be  gathered  from  the  meaning  of  the  words  used   in
      the document, except where it is alleged and proved that the  document
      itself is a camouflage. If the terms of the  document are  not  clear,
      the surrounding circumstances and the conduct of the parties have also
      to be  borne  in  mind  for  the  purpose  of  ascertaining  the  real
      relationship between the parties. If a dispute arises between the very
      parties to the written instrument, then intention of the parties  must
      be gathered from the document by reading the same as a whole.


      20.     In Vodafone International Holdings B.V v.  Union  of  India  &
      Anr.,  (2012) 6 SCC 613, while dealing with a similar situation,  this
      Court held:
               “The Court must look at a  document or a  transaction  in  a
               context to which it properly belongs to. While obliging  the
               court  to  accept documents or  transactions,  found  to  be
               genuine, as such, it  does  not  compel  the  court  to look
               at a document or a transaction in  blinkers,  isolated  from
               any context to which it properly belongs.
                     If it can be seen that a document or  transaction  was
               intended to have effect as part of  a  nexus  or  series  of
               transactions, or as an ingredient  of  a  wider  transaction
               intended as a whole, there is nothing  in  the  doctrine  to
               prevent it being so regarded; to do so in not to prefer form
               to substance, or substance to form. It is the  task  of  the
               court to ascertain the legal nature of  any  transaction  to
               which it is sought to attach a tax or a tax consequence  and
               if that emerges from a series or combination of transactions
               intended  to  operate  as  such,  it  is  that   series   or
               combination       which       may       be        regarded.”
                   (emphasis added)


      21.   In S.T. Krishnappa v. Shivakumar & Ors., (2007) 10 SCC 761, this
      Court observed that the "adoption deed" must be read as  a  whole  and
      that on reading the same in such a way, the intention of  the  parties
      with respect to whether the adoptive father/mother wanted to  make  an
      adoption according to law and not merely, to appoint an heir, must  be
      clearly established.


      22.   In Debi Prasad (dead) by L.Rs. v. Smt. Tribeni Devi, AIR 1970 SC
      1286, this Court held that the giving  and  receiving  are  absolutely
      necessary to the validity of an adoption.  All  that  is  required  is
      that the natural father be asked by the adoptive parent  to  give  his
      son in adoption, and that the boy be handed over and  taken  for  this
      purpose.
            Furthermore, in Mst. Deu & Ors. v. Laxmi Narayan & Ors.,  (1998)
      8 SCC 701,
the presumption of registered documents under Section 16 of
      the Act was discussed.
 It was  held  that  in  view  of  Section  16,
      wherever any document registered under any law is produced before  any
      court purporting to record an adoption made, and the same is signed by
      the persons mentioned therein, the court shall presume that  the  said
      adoption has been made in compliance with the provisions of  the  Act,
      until and unless such presumption is disproved.  It was further  held,
      that in view of Section 16 it is  open  for  a  party  to  attempt  to
      disprove the deed of adoption by initiating  independent  proceedings.




      23.   Mere technicalities therefore,  cannot  defeat  the  purpose  of adoption, particularly when the defendants/respondents have  not  made   any attempt to disprove the said document. No reference was ever  made   either  by  them,  or  by  their  witnesses,  to  this  document  i.e.   registered adoption deed. Undoubtedly, the natural parents had  signed   alongwith 7 witnesses and not at the place where the executants  could  sign. But it is not a case where there were no  witnesses  except  the  executants. Instead of two witnesses, seven  attesting  witnesses  put their signatures.


      24.   In  Atluri Brahmanandam (D), Thr. LRs. v. Anne Sai  Bapuji,  AIR
      2011 SC 545, the Court held:
                “The aforesaid deed of adoption was  produced  in  evidence
               and the same was duly proved in the trial  by  the  evidence
               led by PW-1, the respondent. We have  carefully  scrutinized
               the cross-examination of the said  witness.  In  the  entire
               cross-examination, no challenge was made  by  the  appellant
               herein either to the legality of the  said  document  or  to
               the validity of    the    same.    Therefore,    the    said
               registered adoption deed went unrebutted and unchallenged.
               We have  already  referred  to  the  recitals  in  the  said
               documents which is a registered document  and  according  to
               the recitals therein, the respondent was legally and validly
               adopted by the adoptive father. Since the  aforesaid  custom
               and aforesaid adoption was also  recorded  in  a  registered
               deed of adoption, the Court has to presume that the adoption
               has been made in compliance with the provisions of the  Act,
               since the respondent has utterly  failed  to  challenge  the
               said evidence and also to disprove the aforesaid  adoption.”
                           (emphasis added)


      25.   The appellate courts could therefore, not have drawn any adverse
      inference against the appellants/plaintiffs on the  basis  of  a  mere
      technicality, to the effect that the natural parents of  the  adoptive
      child had acted as witnesses, and not as executors  of  the  document.
      Undoubtedly, adoption disturbs the natural line of  succession,  owing
      to which, a very heavy burden is placed upon the propounder to   prove
      the adoption. However, this onus shifts to the person  who  challenges
      the adoption, once a registered document recording  the  adoption,  is
      brought before the court.  This aspect must be considered taking  note
      of various other attending circumstances i.e., evidence regarding  the
      religious ceremony (giving and taking of the child), as the same is  a
      sine qua non for valid adoption.


      26.   The trial court in this regard, has held that the fact that  the
      natural parents of the adoptive child had signed alongwith seven other
      witnesses as attestants to the deed, and not as its  executors,  would
      not create any doubt regarding the validity of the adoption, or render
      the said registered document invalid,  as  they  possessed  sufficient
      knowledge with regard to the nature of the  document  that  they  were
      executing, and  that  additionally,  no  challenge  was  made  to  the
      registration of the document, immediately after  its  execution.
The
      First Appellate Court took note  of  the  deposition  of  Shri  Vasant
      Bhagwantrao Pandav (PW-1), who had deposed that the adoption deed  had
      been scribed, and that the signatures of the parties and witnesses  to
      the deed had been taken on the same, only after the  contents  of  the
      said document had been  read  over  to  Smt.  Laxmibai,  the  adoptive
      mother,  and   then   to   all   parties   present.   Smt.   Laxmibai,
      appellant/plaintiff was in good health, both physically and  mentally,
      at the time of the  adoption.  The  validity  of  the  adoption  deed,
      however,  was being challenged on the basis of the mere  technicality,
      that only interested witnesses had been examined and the court finally
      rejected  the  authenticity  of  the  said  document,  observing  that
      witnesses who wanted to give weight to their own case,  could  not  be
      relied upon.


      27.   The appellate courts further held that  the  adoption  deed  had
      neither been properly executed, nor satisfactorily proved, and that as
      the   adoption   remains   a    unilateral    declaration    by    the
      appellants/plaintiffs, owing to the fact that the natural  parents  of
      the adopted child, had not signed the adoption deed as  executors  but
      as witnesses, the  same  could  not  be  held  to  be  a  valid  deed.
      Undoubtedly, a mere signature or thumb impression on a document is not
      adequate with respect to proving the contents of a document, but in  a
      case where the person who has given his son in adoption,   appears  in
      the witness box and proves the validity  of  the  said  document,  the
      court ought to have accepted the same, taking into  consideration  the
      presumption under Section 16 of the Act 1956, and visualising the true
      purport of the document, without going into such technicalities.  This
      must  be  done  particularly  in   view   of   the   fact   that   the
      defendants/respondents  have  not  made  even  a  single  attempt   to
      challenge the validity of the said document.  In fact, they  have  not
      made any reference to the same.  We have no hesitation in holding that
      the document was  valid,  and  that  the  same  could  not  have  been
      discarded by the appellate courts.


      28.   There is ample evidence on record to prove the occurrence of the
      giving and taking ceremony.  The trial court, after appreciating  such
      evidence, found the same to be a valid ceremony. The appellate  courts
      have expressed their doubts only with reference to the fact  that  the
      witnesses that were examined in court, were all beneficiaries  of  the
      said adoption.
Shri Vithal  Pandit  Mahajan  (PW-4),  by  any  means,
      cannot be labeled as an interested witness. He was a freedom  fighter,
      who worked in the Hyderabad Liberation Movement.  He was a medical man
      by profession, and was also  involved  in  public  life.  He  was  not
      therefore, likely to be influenced by any of the parties, and  he  had
      duly supported the case of  the  appellants/plaintiffs  regarding  the
      adoption ceremony.  
The appellate  courts  adopted  a  rather  unusual
      course, and drew adverse inference on the basis of the non-examination
      of the appellant/plaintiff, Smt. Laxmibai, observing that  considering
      her  old  age,  she  could  have  taken  recourse  to  the  procedure,
      prescribed under Order XVIII Rule 16, Code of Civil  Procedure,  1908,
      which  lays  down,  that  where  a  witness  is  about  to  leave  the
      jurisdiction of the court, or where some  other  sufficient  cause  is
      shown to the court owing to which it would be prudent for it to ensure
      that his evidence is  taken  immediately,  the  court  may,  upon  the
      application of the party or of the  witness  at  any  time  after  the
      institution of the suit, take the evidence of such witness/party,   in
      the manner  provided therein.
            The appellant was just above  70  years  of  age  and  hale  and
      hearty. She was not suffering from any serious ailment e.g. cancer  or
      has been on death bed. Thus, there was no occasion for her to file  an
      application under Order XVIII Rule 16 CPC which  provides  for  taking
      evidence  De  Bene  Esse  for  recording  statement   prior   to   the
      commencement of the trial.  Mere apprehension of death  of  a  witness
      cannot be a sufficient cause for immediate examination of  a  witness.
      Apprehension of a death applies to each and every witness, he or  she,
      young or old, as nobody knows what will happen  at  the  next  moment.
      More so, it is the discretion of the court to come to a conclusion  as
      to whether there is a sufficient cause or not to examine  the  witness
      immediately.
            We are of  the  view  that  had  Smt.  Laxmibai  moved  such  an
      application,  the  trial  court  could  not  have  allowed  it   after
      considering the aforesaid facts.


      29.   Admittedly, before the trial commenced, Smt. Laxmibai had  died.
      The other witnesses who entered the witness box however,   proved  the
      adoption ceremony and adoption deed.  Smt. Gopikabai was not examined.
      
 Thus, the question that arises is whether the court has to  weigh  or
      count the evidence and also whether a deposition of a witness is to be
      doubted merely on the ground that the witness happened to  be  related
      to the plaintiff.


      30.   In the matter of appreciation of evidence of  witnesses,  it  is
      not the number of witnesses but quality of  their  evidence  which  is
      important, as there is no requirement in  law  of  evidence  that  any
      particular number of witnesses is to be examined to  prove/disprove  a
      fact. It is a time- honoured principle, that evidence must be  weighed
      and not counted. The test is whether the evidence has a ring of truth,
      is cogent, credible and trustworthy or otherwise. 
The legal system has
      laid emphasis on value provided  by  each  witness,  rather  than  the
      multiplicity  or  plurality  of  witnesses.  
It  is  quality  and  not
      quantity, which determines  the  adequacy  of  evidence  as  has  been
      provided by Section 134 of the Evidence Act. Where  the  law  requires
      the examination of at least one attesting witness, it  has  been  held
      that the number of  witnesses  produced,  do  not  carry  any  weight.
      (Vide: Vadivelu Thevar v. State of Madras; AIR 1957  SC  614;  Jagdish
      Prasad v. State of M.P. AIR 1994 SC 1251;  Sunil Kumar v. State  Govt.
      of NCT of Delhi AIR 2004 SC 552; Namdeo v. State  of  Maharashtra  AIR
      2007 SC (Supp) 100; Kunju @ Balachandran v. State of Tamil  Nadu,  AIR
      2008 SC 1381; Bipin Kumar Mondal v. State of West  Bengal  AIR201O  SC
      3638; Mahesh & Anr. v. State of  Madhya  Pradesh  (2011)  9  SCC  626;
      Kishan Chand v. State of Haryana JT 2013( 1) SC 222).


      31.   Furthermore, there cannot be any dispute  with  respect  to  the
      settled legal proposition, 
that if a party wishes to raise  any  doubt
      as regards the correctness of the statement of  a  witness,  
the  said
      witness must be given an  opportunity  to  explain  his  statement  by
      drawing his attention to that part of it, which has been  objected  to
      by the other  party,  as  being  untrue.   
Without  this,  it  is  not
      possible to impeach his credibility.  
Such a law has been advanced  in
      view of the statutory provisions  enshrined  in  Section  138  of  the
      Evidence Act, 1872, which enable the opposite party to cross-examine a
      witness as regards information tendered in evidence by him during  his
      initial examination in chief, and the scope of this  provision  stands
      enlarged by Section 146 of the Evidence Act, which permits  a  witness
      to  be  questioned,  inter-alia,  in  order  to  test  his   veracity.
      
Thereafter, the unchallenged part of his  evidence  is  to  be  relied
      upon, for the reason that it is impossible for the witness to  explain
      or elaborate upon any doubts as regards the same, in  the  absence  of
      questions put to him with respect to the circumstances which  indicate
      that the version of events provided by him, is not fit to be believed,
      and the witness himself, is unworthy  of  credit.  
Thus,  if  a  party
      intends to impeach a witness, he must provide adequate opportunity  to
      the witness in the witness box, to give a full and proper explanation.
      The same is essential to ensure fair play and fairness in dealing with
      witnesses.  (See: Khem Chand v. State of Himachal Pradesh, AIR 1994 SC
      226; State of U.P. v. Nahar Singh (dead) & Ors.,  AIR  1998  SC  1328;
      Rajinder Pershad (Dead) by L.Rs. v. Darshana Devi (Smt.), AIR 2001  SC
      3207; and Sunil Kumar & Anr. v. State of Rajasthan, AIR 2005 SC 1096).




      32.   Binorkar (PW-2), photographer was examined by the appellant, and
      he deposed that he was engaged by Laxmibai,  the  appellant,  to  take
      photographs of the ‘Datta Homam’ ceremony on 11.5.1971.   
He  narrated
      the manner in which the adoption ceremony had taken place, and further
      stated that one another photographer had also been present at the said
      ceremony. 
He further deposed that he  had  developed  the  photographs
      taken by him,  and also  identified  the  photographs  produced  under
      exhibit 112/18. Photographs  marked  as  serial  nos.11,  12  and  13,
      alongwith their negatives, were produced by him in court.   
Thus,  the
      photographs as  exhibits 251, 252 and 253 were admitted  in  evidence.
      He also proceeded to identify Laxmibai appellant, and the adopted  son
      in these photographs, as also Vasantrao, who was present in court  and
      stated that he had in fact, been present at the time of  adoption.  
He
      was cross-examined  thoroughly,  and  was  asked  a  large  number  of
      questions regarding his dealings with clients. However, in the  course
      of the cross-examination, he was not asked whether he had followed the
      practices mentioned by him in the case of Laxmibai as well.  
He denied
      suggestions  made  to  him  with  respect  to  whether  the  aforesaid
      photographs  had  been  developed  by  him   by  resorting  to   trick
      photography, in view of the fact  that   he  had  certain  obligations
      towards Vasantrao Pandav,  on account of financial assistance provided
      to him by the latter. 
The trial Court found his deposition  worthy  of
      reliance, taking note of the fact that once he had deposed that he had
      himself taken the photographs, and had also developed  the  negatives,
      there was no reason to doubt his veracity. 
 It was not put to  him  in
      the cross-examination, whether, for the purpose of making or preparing
      enlarged prints of the photographs from  the  negatives  thereof,  the
      negatives themselves were also required to be enlarged.  Moreover, the
      defendants/respondents did not examine any expert on this  point,  who
      could have provided clarity with  respect  to  whether  the  aforesaid
      negatives of the photographs of which enlarged prints were taken, were
      also required to be enlarged.  
 It  was  in  this  backdrop  that  his
      version was found to be correct, and that the same came to support the
      case of the validity of the adoption.
      33.   The First Appellate Court dealt with the same issue and  doubted
      the  veracity  thereof,  on  the  ground  that   there   was   another
      photographer as per the version of events provided  by  this  witness,
      who was not examined.   Therefore,  the  occasion  itself  was  deemed
      suspicious.  Furthermore,  the  photographer  failed  to  produce  the
      record of his studio to show that he had been called to photograph the
      said occasion, or that any order was given to him in this  connection.
      In such circumstances, it was difficult to hold that he  had  in  fact
      been engaged for the purpose of taking  photographs  of  the  adoption
      ceremony and the entire testimony of Binorkar (PW-2) became  doubtful.
      The photographs produced in court, did not contain a stamp and date on
      their rear side, to show for holding that  they  were  prepared  at  a
      particular   juncture,   as    per    the    instructions    of    the
      appellants/plaintiffs.  The photographs were of different sizes.   The
      First Appellate  Court  also  doubted  the  enlargement  of  the  said
      photographs. In addition to this, he  was  labeled  as  an  interested
      witness merely on the basis of a statement made by him,  stating  that
      he wished that Raghunath be recognised as the adopted son of Laxmibai.
       The witness (PW-2),  produced  only  3  undeveloped  negatives,  even
      though he had stated that he had taken a total of 15 photographs.


      34.   In Smt. Rajbir Kaur & Anr. v. M/s. S. Chokosiri & Co., AIR  1988
      SC 1845, this Court held that the trial Court is  the  best  judge  of
      evidence.  Furthermore, in Sarju Pershad Ramdeo Sahu  v.   Jwaleshwari
      Pratap Narayan Singh & Ors., AIR 1951 SC 120, this  Court  held,  that
      when there is conflict of oral evidence of the parties on  any  matter
      in  issue  and  the  decision  hinges  upon  the  credibility  of  the
      witnesses, then  unless  there  is  some  special  feature  about  the
      evidence of a particular witness which has escaped the  trial  Judge’s
      notice, or where there is a sufficient  balance  of  improbability  to
      displace his opinion as to where credibility lies, the appellate court
      must interfere with the finding of the trial Judge on  a  question  of
      fact.


      35.  In Jagdish Singh v. Madhuri Devi, AIR 2008 SC  2296,  this  Court
      held:
               “When there is a conflict of oral evidence on any matter  in
               issue and its resolution turns upon the credibility  of  the
               witnesses, the general rule  is  that  the  appellate  court
               should permit the findings of fact  rendered  by  the  trial
               court to prevail unless it clearly appears that some special
               feature about the  evidence  of  a  particular  witness  has
               escaped the  notice  of  the  trial  court  or  there  is  a
               sufficient balance of improbability to displace its  opinion
               as to where the  credibility  lies....  When  the  Court  of
               original  jurisdiction  has  considered  oral  evidence  and
               recorded findings after seeing the  demeanour  of  witnesses
               and having applied its mind, the appellate court is enjoined
               to keep that fact in mind. It has to deal with  the  reasons
               recorded and conclusions arrived  at  by  the  trial  court.
               Thereafter, it is certainly open to the appellate  court  to
               come to its own conclusion if  it  finds  that  the  reasons
               which weighed with the trial Court or conclusions arrived at
               were not in consonance with law.”


      (See also: Dharamvir v. Amar Singh, AIR 1996 SC 2314;  Santosh  Hazari
      v. Purushottam Tiwai (Dead)  by  Lrs.  ,  AIR  2001  SC  965;  and  G.
      Amalorpavam & Ors. v. R.C. Diocese of Madurai & Ors. (2006) 3 SCC 224)

      36.   Similarly, in  Santosh Hazari v. Purushottam  Tiwari,  (2001)  3
      SCC 179, this Court observed :
               "The appellate Court has jurisdiction to reverse  or  affirm
               the findings of the trial Court. First appeal is a  valuable
               right of the parties and unless restricted by law, the whole
               case is therein open for rehearing both on questions of fact
               and  law.  …..While  writing  a  judgment  of  reversal  the
               appellate Court must remain  conscious  of  two  principles.
               Firstly, the findings of fact based on conflicting  evidence
               arrived at by the trial Court must weigh with the  appellate
               Court, more so when the findings are based on oral  evidence
               recorded  by  the  same  Presiding  Judge  who  authors  the
               judgment. This certainly does not mean that when  an  appeal
               lies on facts, the  appellate  Court  is  not  competent  to
               reverse a finding of fact arrived at by the trial Judge.  As
               a matter of law if the appraisal  of  the  evidence  by  the
               trial Court suffers from a material irregularity or is based
               on inadmissible evidence or on conjectures and surmises, the
               appellate Court is entitled to interfere with the finding of
               fact."

      (See also: Union of India & Anr. v. Ranchod & Ors., AIR 2008 SC 938)


      37.   There is no prohibition  in  law  for  the  appellate  court  to
      reappreciate the evidence where  compelling  and  substantial  reasons
      exist.  The findings can also be reversed, in case convincing material
      has  been  unnecessarily  and  unjustifiably  stood  eliminated   from
      consideration.  However, the evidence is to  be  viewed  collectively.
      The statement of a witness must be read as a whole as  reliance  on  a
      mere line in a  statement  of  a  witness  is  not  permissible.   The
      judgment of a court can be  tested  on  “touchstone  of  dispassionate
      judicial scrutiny based on a complete and  comprehensive  appreciation
      of all views of the case, as well as on the quality and credibility of
      the evidence brought on record”. The judgment must not be  clouded  by
      the facts of the case.
      38.   The High Court dealt with an issue and disbelieved the testimony
      of  said witness, observing as under :-
           “Apparently,  the  photographer  did  not  produce  any   record
           whatsoever  other  than  the  negative  and   the   photographs.
           Therefore, the lower appellate Court had rightly concluded  that
           the photographs could not be taken in evidence as the same  were
           not proved  as  per  law  for  the  cogent  and  proper  reasons
           mentioned therein.”




      39.   Respondents/defendants did not examine any expert  to  discredit
      the testimony of their  witness.  The  adoption  had  taken  place  on
      11.5.1971, and  the  evidence  of  Binorkar  (PW-2)  was  recorded  on
      7.2.1977.  Thus, we are of  the  view  that  the  view  taken  by  the
      appellate courts is entirely impracticable and does not resonate  with
      the attending circumstances, particularly, when the photographer  (PW-
      2), had denied the suggestion that he had not brought the Account Bill
      Books etc. of his studio as he had not taken the photographs as stated
      by him,  on 11.5.1971 i.e., the day of adoption. His evidence has also
      wrongly been doubted because there  were  two  photographers  and  the
      other was  not  examined  by  the  appellants/plaintiffs.  It  is  not
      permissible to reject evidence on irrelevant grounds. Nor the judgment
      can be based on surmises and  conjectures.
  (Vide:  Ashish  Batham  v.
      State of Madhya Pradesh, AIR 2002 SC 3206; and Rathinam alias Rathinam
      v. State of Tamil Nadu & Anr., (2011) 11 SCC 140)


      40.   The appellate court has  erred  by  considering  the  irrelevant
      material,  while  the  most  relevant  evidence,  i.e.,  the  adoption
      ceremony and the adoption deed, have been disregarded on the basis  of
      mere surmises and conjectures.  The  correctness  or  authenticity  of
      adoption deed is not disputed. What is disputed is  that  the  natural
      parents of adoptive child who were definitely executing parties of the
      deed have signed as witnesses alongwith 7 other witnesses. In  such  a
      fact-situation, by gathering the  intention  of  the  parties  and  by
      reading the document as a whole and considering its purport, it can be
      concluded that the adoption stood the test of law. We think that cause
      of justice would be served, instead of being thwarted, where there has
      been substantial compliance of the legal  requirements,  specified  in
      Section 16 of the Act 1956.  When substantial  justice  and  technical
      considerations are pitted against each other, the cause of substantial
       justice deserves to be preferred and the courts  may  in  the  larger
      interests of administration of justice may excuse or overlook  a  mere
      irregularity or a trivial breach of law for doing real and substantial
      justice to the parties and pass orders which will serve  the  interest
      of justice best.


            In view of the above, the appeal succeeds and is allowed.    The
      judgments and decrees of  the  appellate  courts  are  set  aside  and
      judgment and decree of the trial court is restored.  There shall be no
      order as to costs.




                                                ..………………………….J.
                                                                 (Dr.   B.S.
    CHAUHAN)




                                        .…………………………..J.
                                         (V. GOPALA GOWDA)
    New Delhi,
    January 29, 2013


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