IN THE SUPREMECOURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2058 OF 2003
Laxmibai (Dead) thr. Lrs. & Anr. … Appellants
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
He died in 1951, leaving behind his widow, namely,
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.
respondents herein, who are also descendants of Sri Sant Eknath
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 The aforementioned suit was withdrawn subsequently, in
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
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
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.
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
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
A custom cannot be extended by analogy or logical process
and it also cannot be established by a priori method.
the Courts can take judicial notice of needs to be proved.
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.
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
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
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
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
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
15. We have appreciated the evidence on record, and are of the view
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.
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
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.
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
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
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.
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.
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
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
“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.”
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
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
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.”
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.
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
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
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
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
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,
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.
the manner in which the adoption ceremony had taken place, and further
stated that one another photographer had also been present at the said
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.
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.
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.
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
35. In Jagdish Singh v. Madhuri Devi, AIR 2008 SC 2296, this Court
“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
(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
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.
(V. GOPALA GOWDA)
January 29, 2013