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Thursday, January 31, 2013

whether respondent Nos.1 and 2 are entitled to reimbursement of the amount paid to the teachers by way of leave encashment under the statutes framed by the Pune University. - In fact, the Grievance Committee had given a report in favour of the petitioner which was dealt by the Grievance Committee after petition came to be filed.= institution will be entitled to claim reimbursement by way of grant from the respondent - State. Only correction requires to be done is that the liability of the State would be subject to claim of the respondent being admissible under law. Therefore, we add a sentence at the conclusion of Paragraph No. 9 if admissible under law. The State Government also took cognizance of the orders passed by the High Court in Writ Petition No. 2671/2006 and Contempt Petition No. 191/2006 and directed that the University Statutes should be amended with retrospective effect and till then, the concerned University should bear expenses incurred in payment of leave encashment. This was reiterated vide letter dated 20.10.2008 sent by the Director of Education (Higher Education), Maharashtra to all the universities.= the provisions contained in the 1981 Rules are not applicable to the university teachers and the teachers of the affiliated colleges because they are not Government servants but this cannot lead to an inference that the affiliated colleges are entitled to reimbursement of the amount paid to the teachers in lieu of earned leave.- till the Statutes, which are not inconsistent with the provisions of the 1994 Act, are modified or superseded the same shall continue to remain in force. However, these observations cannot be interpreted in a manner which would entitle the university or the affiliated colleges to claim reimbursement.- In the result, the appeals are allowed, the impugned orders are set aside and the writ petition filed by respondent Nos. 1 and 2 is dismissed. The parties are left to bear their own costs.


                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                      CIVIL APPEAL NOS. 531-532 OF 2013
              (Arising out of SLP(C) Nos.  27286-27287 of 2009)

State of Maharashtra and others                               …Appellants

                                   versus

Nowrosjee Wadia College and others
…Respondents



                               J U D G M E N T
G. S. Singhvi, J.

1.    The question which  arises  for  consideration  in  these  appeals  is
whether respondent Nos.1 and 2 are entitled to reimbursement of  the  amount paid to the teachers by way of leave encashment under  the  statutes  framed by the Pune University.

2.    Dr. Anagha Anant Nadkarni and  Dr.  Moreshwar  J.  Bedekar,  who  were
employed as Professors in respondent No.1 college retired  from  service  in
November, 2003.
They filed applications  before  Pune  University  Grievance
Committee (for short, ‘the Committee’) for encashment of earned leave.  
The
Committee passed order dated 3.5.2007 and recommended payment of the  amount
in lieu of earned leave. However, respondent  No.1  did  not  act  upon  the
recommendations of the Committee.
Therefore, Dr. Anagha Anant  Nadkarni  and
Dr. Moreshwar J. Bedekar filed Writ Petition Nos.8763 and 8775 of  2007  for
issue of  a  mandamus  to  respondent  No.1  to  pay  the  amount  of  leave
encashment.
The same were disposed of by the Division Bench  of  the  Bombay
High Court vide order dated 7.4.2008 along with  11  other  writ  petitions.
The Division  Bench  relied  upon  order  dated  22.1.2007  passed  in  Writ
Petition No.4936/2006 – V.  S.  Agarkar  v.  The  Chairman,  Grievance  Cell
Committee, Pune University and others and held:
      “.  Therefore, there could not be any controversy over  the  issue  of
      entitlement of the petitioners for  encashment  of  unutilised  earned
      leave on superannuation which in the case of V.S. Agarkar (supra)  has
      been discussed at length and, therefore, we dispose of these petitions
      with a direction to the respondent-institution and the Principal  that
      the Principal of the Institution where the petitioners  were  employed
      to pay to the petitioners leave encashment for  maximum  180  days  or
      lesser to the extent that the petitioners are  entitled  to  and  that
      they shall complete the exercise within a period of eight  weeks  from
      today. We further make it clear that the Institution after discharging
      their liability of payment of leave encashment as per the  entitlement
      of the petitioners, are entitled to  claim  reimbursement  by  way  of
      grant from the Respondent-State.”

3.    By another order dated 9.6.2008 passed in Writ  Petition  No.2881/2007
Khandesh College Education Society v. Arjun Hari Narkhede and others,  the
Division Bench of the High Court directed payment  of  leave  encashment  to
the teachers in  terms  of  the  order  passed  in  V.  S.  Agarkar’s  case.
Simultaneously, liberty was given to the institutions to seek  reimbursement
from the State. That order  was  modified  on  20.6.2008  in  the  following
terms:
      “We have disposed of these petitions by common order  dated  9.6.2008.
      It has been pointed out by the petitioner in  W.P.  No.6540/2007  that
      this court has observed that  Grievance  Committee  has  rejected  the
      claim of the petitioner on the ground that it is barred by  delay  and
      latches as the petitioner had approached the Grievance Committee after
      lapse of three years. It is submitted that  this  statement  was  made
      without proper instructions. In  fact,  the  Grievance  Committee  had
      given a report in favour of the petitioner  which  was  dealt  by  the
      Grievance Committee after petition came to be  filed.  We,  therefore,
      record this to be read at the end of Paragraph No.  4  that  later  on
      Counsel has submitted as aforesaid. This does not in any manner affect
      the  substantive  relief  granted  by  the  court  in  favour  of  the
      petitioner.


      2. Learned A.G.P. submitted that this court has observed in concluding
      Paragraph that respondent - institution  will  be  entitled  to  claim
      reimbursement by way of  grant  from  the  respondent  -  State.  
Only
      correction requires to be done is that  the  liability  of  the  State
      would be subject to claim of the  respondent  being  admissible  under
      law. Therefore, we add a sentence at the conclusion of Paragraph No. 9
      if admissible under law. Our order be read accordingly.”


4.    Khandesh College Education Society challenged the orders of  the  High
Court in SLP (C) Nos.17039-17040/2008, which were disposed of by this  Court
vide order dated 5.7.2011 along  with  a  batch  of  similar  special  leave
petitions. 
The two Judge Bench first considered  the  question  
whether  the
provisions of Maharashtra Civil Services (Leave)  Rules,  1981  (for  short,‘the 1981 Rules’) are applicable to  the  teachers  employed  by  respondent No.1, and held:


      “From the very language of different provisions  of  Rule  54  of  the
      Maharashtra Civil Services (Leave) Rules, 1981 it  is  clear  that  it
      applies only to “a government servant”. Respondents 1 to  14  are  not
      government servants and, therefore, cannot be denied earned  leave  on
      the basis of provisions made in  Rule  54  of  the  Maharashtra  Civil
      Services (Leave) Rules, 1981.”


The Bench then referred  to  the  relevant  provisions  of  the  Maharashtra
Universities Act, 1994 (for short, ‘the  1994  Act’),  Statutes  424(3)  and
424(C) of the University of Pune and observed:
      “On the other hand,  Section  115  of  the  Act  while  repealing  the
      different Acts applicable to different universities in  the  State  of
      Maharashtra provides in sub-section (2)(xii) that  all  Statutes  made
      under the repealed Acts in respect of any existing  university  shall,
      insofar as they are not inconsistent with the provisions of  the  Act,
      continue in force and be deemed to have been made  under  the  Act  in
      respect of the corresponding university until they are  superseded  or
      modified by the Statutes made under the Act.  Hence,  Statutes  424(3)
      and 424(C) of  University  of  Pune,  which  were  applicable  to  the
      University, continue to be in force and are deemed to  be  made  under
      the Act if they are not inconsistent with any provision of the Act  or
      are not superseded, modified by Statutes made under the Act.


      Sections 5(60), 8 and 14(5) of the  Act  confer  power  on  the  State
      Government to exercise control over the University in some matters and
      also  empower  the  State  Government  to  issue  directives  to   the
      University and cast a duty on the Vice-Chancellor to ensure compliance
      with such directives, but these provisions in the Act do not  prohibit
      grant of earned leave to a  teacher  or  Lecturer  of  any  affiliated
      college who can avail a vacation from being entitled to  earned  leave
      or from being entitled to encashment of accumulative earned  leave  at
      the time of retirement. In other words, Statutes 424(3) and 424(C)  of
      University of Pune are not in any way inconsistent with the provisions
      of the Act. The learned counsel for  the  petitioners  and  the  State
      Government have also not brought to our  notice  any  statute  of  the
      University modifying or superseding Statute 424(3) or  Statute  424(C)
      of University of Pune which were applicable to the University.


      Statutes 424(3)  and  424(C)  of  University  of  Pune  are  extracted
      hereinbelow:

           “424. (3). Leave.—
           (a)-(b)     *    *     *
           (c) Earned leave.—

                 (a) The confirmed non-vacation teacher shall be entitled to
                 earned leave at the rate  of  one-eleventh  of  the  period
                 spent on duty subject to his accumulating  maximum  of  180
                 days of leave.

                 (b) The teacher other than the one included  in  (a)  above
                 shall be entitled to one twenty-seventh of the period spent
                 on duty and the period of earned leave as provided  in  the
                 proviso to Section  423  subject  to  his  accumulation  of
                 maximum of 180 days. For this purpose the period of working
                 days only shall be considered.”
                       *     *     *
           “424(C).   Encashment   of   unutilised    earned    leave    on
           superannuation.—The teacher shall be entitled to  encash  earned
           leave in balance to his credit on the date of his superannuation
           subject to a maximum of 180 days.

           In case the teacher  is  required  to  serve  till  the  end  of
           academic session beyond the date of his superannuation, he shall
           be entitled to encash the balance of earned leave to his  credit
           on the date of his actual retirement from service.”


      A reading of Statute 424(3) extracted above would show that clause (a)
      applies to confirmed non-vacation teachers and clause (b)  applies  to
      teachers other than  non-vacation  teachers  and  clause  (b)  clearly
      states  that  teachers  other  than  non-vacation  teachers  shall  be
      entitled to earned leave subject to their accumulation of maximum  180
      days. Statute 424(C), quoted above,  further  provides  that  teachers
      shall be entitled to encash earned leave in balance to their credit on
      the date of his superannuation subject to a maximum of 180 days.


      It, however, appears that the State Government has  issued  directives
      from time to time to the universities to amend the Statutes so  as  to
      ensure that Lecturers or teachers working in Vacation Departments  are
      not entitled to earned leave and encashment of earned leave,  but  the
      fact remains that Statutes 424(3) and 424(C)  of  University  of  Pune
      have not been modified or superseded. There are also no provisions  in
      the Act to the effect that the Statutes  of  a  university  which  are
      inconsistent with the directives  of  the  State  Government  will  be
      invalid. Section 115(2)(xii) rather states that statutes which are not
      inconsistent with the provisions of the Act and which  have  not  been
      modified  or  superseded  shall  continue  to  be  in  force.   Hence,
      Respondents 1 to 14 were entitled to earned leave  and  encashment  of
      earned leave as per the provisions of Statutes 424(3)  and  424(C)  of
      University of Pune.”



5.    After recording the aforesaid  observations,  the  Bench  declined  to
grant leave but gave three months time to  the  SLP  petitioners  to  comply
with the directions given by the High Court.

6.    After 3 years of enactment of the 1994 Act, which resulted  in  repeal
of various existing statutes  including  the  Poona  University  Act,  1974,
under  which  Statutes  424(3)  and  424(C)  had  been  framed,  the   State
Government issued instructions to the Universities  to  discontinue  payment
of leave encashment to the teachers by pointing out that they  fall  in  the
categories of employees working in the  ‘Vacation  Department’.  
The  State
Government also took cognizance of the orders passed by the  High  Court  in
Writ Petition No. 2671/2006 and Contempt Petition No. 191/2006 and  directed
that the University Statutes should be  amended  with  retrospective  effect
and till then, the concerned University should  bear  expenses  incurred  in
payment  of  leave  encashment.  This  was  reiterated  vide  letter   dated
20.10.2008  sent  by  the  Director   of   Education   (Higher   Education),
Maharashtra to all the universities.

7.    In furtherance of the directives given by the  State  Government,  the
Vice-Chancellor of Pune University passed order dated 1.2.2009, which  reads
as under:

      “WHEREAS the Maharashtra State Legislature has enacted the Maharashtra
      Universities Act, 1994 (Maharashtra Act No. XXXV of 1994),  which  has
      come into force with effect from 22nd July, 1994.


      AND WHEREAS as per Section 51(8) of the Maharashtra  Universities  Act
      1994, the University has power to prescribe the terms  and  conditions
      of the services of the teachers by framing Statutes.


      AND WHEREAS the University, in exercise of the power vested in it,  as
      per Section 51(8) of the Maharashtra Universities Act, has framed  the
      Statutes regarding the entitlement, surrender and  encashment  of  the
      earned leave to the teachers.


      State Government, vide its letter dated 9th August,  2007,  University
      to repeal the provisions of earned leave effect, since the teachers of
      the University of the vacation, they are not entitled for earned leave
      in the Statutes with retrospective effect, since the Teachers  of  the
      University and affiliated colleges avail of the vacation, they are not
      entitled for earned leave.


      AND WHEREAS the State Government, vide its further letter  dated  20th
      October, 2008 directed all Universities to repeal  the  provisions  of
      earned leave in the Statues with retrospective effect, within a period
      of one month from the date of the letter.


      AND WHEREAS as per Section 14(5) of the  Maharashtra  University  Act,
      1994, it is, inter alia, duty of the Vice-Chancellor  to  ensure  that
      directives of the State Government are strictly observed.


      AND WHEREAS as per Section 5(60) of the Maharashtra Universities  Act,
      1994, the University has to comply with and carry out  any  directives
      issued by the State Govt from time to time.


      AND WHEREAS a proposal as regards  repealing  the  Statute  424(C)  in
      respect of encashment of earned leave with retrospective  effect,  was
      placed before Management Council in its meeting held on  22nd  August,
      2008.


      AND WHEREAS the Management Council of the University in its above said
      meeting resolved that an administrative decision as regards  repealing
      the Statute 424 (C), be taken and the directives  be  issued  in  this
      regard in view of the provisions of Section 5(60) and Section 14(5) of
      the Maharashtra & Universities Act, 1994.


      AND WHEREAS the Management Council of the University, in  its  meeting
      held on 1st October, 2008 confirmed its earlier  decision  as  regards
      repealing the Statute 424 (G), be taken and the directives  be  issued
      in this regard in view of the provisions of Section 5(60) and  Section
      14(5) of the Maharashtra Universities Act 1994 arid resolved that  the
      said decision be implemented with effect from 1st February, 2009.


      AND WHEREAS it will take some time to  repeal  the  said  Statute  and
      place the same before the Statutory Authorities in the  University  as
      laid down in Section 52 of the Maharashtra Universities Act, 1994.


      Therefore, I Dr. Narendra Damodar  Jadhav,  Vice-  chancellor  of  the
      University of Pune, by and under the powers vested in  the  under  sub
      section 8 of Section 14 of the  Maharashtra  Universities  Act,  1994,
      hereby issue the following directives;


      The Teachers Statute 424 (C) is repealed w.e.f. 1st February, 2009.


        Ref: No.LAW/2009/73        Dr. Narendra Jadhav
        Dated 1.2.2009                        Vice-Chancellor.

        Present Statute                       Amendment  Statute after
                                                                    Proposed
amendment

      Statute 424 (C) encashment of    Delete
         Unutilized   Earned   Leave on    statute 424
         Superannuation                           (C)


      The teacher shall be entitled to encash earned  leave  in  balance  to
      his credit on the date of his superannuation  subject  to   a  maximum
      of 180 days.


      In case the teacher is required to serve  till  the  end  of  academic
      session beyond  the  date of  his superannuation, he shall be entitled
      to encash the balance of earned leave to his credit on the date of his
      actual retirement from service.”


                      (The order has been extracted from the SLP paper-book)
8.    Feeling aggrieved by the directives issued by  the  State  Government,
respondent Nos. 1 and 2 filed Writ Petition  No.6609/2009  for  issue  of  a
mandamus  to  the  State  Government  to  reimburse  the  total  amount   of
Rs.4,46,815/- paid to  Dr.  Anagha  Anant  Nadkarni  and  Dr.  Moreshwar  J.
Bedekar and for grant of a declaration that State Government  is  liable  to
reimburse the amount paid to other teachers by way of leave encashment.

9.    The State Government contested the writ petition by relying  upon  the
provisions of the 1981 Rules and the instructions issued for repeal  of  the
Statutes with retrospective effect and pleaded  that  the  writ  petitioners
are not entitled to reimbursement  of  the  leave  encashment  paid  to  the
teachers employed in the ‘Vacation Department’.

10.   The Division Bench of the High Court referred to order dated  7.4.2008
passed in Writ Petition No. 8763/2007 and connected matters and disposed  of
the writ petition vide order dated 24.8.2009 by  taking  cognizance  of  the
statement made by the Assistant Government Pleader that the amount  paid  to
the teachers will be reimbursed by way of  grant.  The  Director  of  Higher
Education and others filed Civil Application No.2320/2009  for  modification
of order dated 24.8.2009. The same was disposed of  by  the  High  Court  on
9.10.2009 by relieving the Assistant Government Pleader  of  the  concession
made by him. However, the direction given for reimbursement  of  the  amount
paid by the institutions to  the  teachers  in  lieu  of  earned  leave  was
maintained on the premise that order dated 7.4.2008 passed in Writ  Petition
No.8763/2007 and batch has become final.

11.   On  3.11.2009,  this  Court  ordered  notice  in  SLP  (C)  Nos.27286-
27287/2009 but dismissed a batch of special  leave  petitions  by  recording
the following observations:

      “These SLPs arise from the common order dated 7.4.2008 in a  batch  of
      writ petitions. There is a delay of 480 days.


      It is submitted that the order dated 7.4.2008 has been   followed   in
        another   batch   of   cases - Khandesh  College  Education  Society
      vs.   Arjun   Hari   Narkhede   &   Ors.   and    connected      cases
      W.P.No.2881/2007   dated 9.6.2008. Later, having found that there  was
      an obvious omission, the   High   Court   made    an   amendment    to
      the   order dated 9.6.2008,   by order dated 20.6.2008 by  adding  the
      words “if admissible under law"  after  the  words  "are  entitled  to
      claim   reimbursement by way    of    grant     from  the  Respondent-
      State".   It is submitted that the High Court, having  made  the  said
      amendment   in the  order  dated  9.6.2008  in  W.P.(C)  No.2881/2007,
      ought to have made the said correction in  the  impugned  order  dated
      7.4.2008 also as that order also contained  a    similar  omission  by
      oversight.  Therefore, it will be    appropriate  if  the  petitioner-
      State approaches the High Court and  point  out  that  the  correction
      having been found necessary in the order dated 9.6.2008,  it ought  to
      have been made in the order  7.4.2008   also   when  correcting    the
      order dated 9.6.2008.”



12.   In furtherance of the observations made by this Court, the  appellants
filed applications for clarification of order dated 7.4.2008 passed  by  the
High Court. Respondent Nos.  1  and  2  resisted  the  prayer  made  in  the
applications by asserting that the clarifications sought by the State  would
completely change the nature of relief granted  by  the  High  Court.  After
considering the objections, the High  Court  passed  order  dated  3.5.2011,
paragraphs 5, 6 and 7 of which read as under:
      “5. In our opinion, the clarification sought by the applicant-State of
      Maharashtra is a benign clarification. Inasmuch  as,  the  respondents
      (original writ petitioners) or the management of the school  in  which
      the teachers were employed and have been paid leave encashment amount,
      cannot be heard to contend that the management would be  entitled  for
      reimbursement of the amount so paid  by  them  even  if  the  same  is
      inadmissible in law. In other words, the directions contained  in  the
      order dated 7.4.2008 will have to  be  understood  to  mean  that  the
      management would be entitled to claim reimbursement by  way  of  grant
      from the respondent-State to the extent of the amount paid  by  it  to
      the  teachers as leave encashment, if permissible in law.


      6. In this view of the matter, we allow all these  Civil  Applications
      by adding at the end of paragraph 4, the following words:-


                          “if permissible in law.”


      7. We, however, record the submission of the management as well as the
      teachers (original writ petitioners) with approval that the fact  that
      such clarification has been issued does not necessarily mean that  the
      management is not entitled for reimbursement in law. That is a  matter
      which will have to be examined in appropriate proceedings as and  when
      occasion arises.”



13.   Shri Chinmoy Khaladkar, learned counsel for  the  appellants  referred
to the provisions of the 1994 Act,  the  1981  Rules  and  argued  that  the
appellants are not obliged to reimburse the amount paid by  respondent  No.1
to the teachers by way of leave encashment in terms of the  Statutes  framed
by the Pune University because neither the Poona University  Act,  1974  nor
any other enactment mandates reimbursement of the amount  paid  in  lieu  of
the earned leave. Learned counsel pointed out that in terms of Rules 52  and
54 of the 1981 Rules, the teachers employed in the Government  colleges  are
not entitled to the benefit of leave encashment and  argued  that  it  would
amount to invidious discrimination if the teachers employed in  the  private
colleges affiliated to the University are held entitled to  the  benefit  of
leave encashment.

14.   Shri Colin Gonsalves, learned senior counsel  for  respondent  Nos.  1
and 2 argued that despite the order passed by the High  Court  on  3.5.2011,
the appellants are duty bound to reimburse the colleges the amount  paid  to
the teachers by way of leave encashment. Learned  senior  counsel  submitted
that in view of Section 115(2), the existing Statutes  and  Ordinances  made
under the Acts specified in sub-section (1) of Section 115  will  be  deemed
to have been saved because the University had not framed fresh  Statutes  or
repealed the existing Statutes.

15.   We have considered the  respective  arguments.  Sections  3(1),  5(9),
5(49), 5(57), 5(60), 8(1)(a) to 8(c),  8(1)(g),  8(2),  8(3),  8(4),  14(5),
51(5),  51(8),  52(6),  115(1)  and  115(2)(xii)  of  the  1994  Act,  Rules
50(1)(a), 50(1)(b), 52, 54(1), 54(2), the relevant extract  of  Appendix  II
of the 1981 Rules and Statutes 424(3) and  424(C),  which  have  bearing  on
these appeals, read as under:

      The 1994 Act.
      “3. Incorporation of universities:- (1) In relation  to  each  of  the
      existing universities specified  in  column  (1)  of  Part  I  of  the
      Schedule, with effect from the date of commencement of this  Act,  the
      corresponding university with the name, specified against it in column
      (2) of the said Part, is hereby constituted under this  Act,  for  the
      same area specified in column (3) of the said Part for  which  it  was
      constituted immediately before the date of commencement of this Act.


      5. Powers and duties of university: - The university  shall  have  the
      following powers and duties, namely:-

      (1) to (8)  xxx        xxx        xxx

      (9) to create posts of  directors,  principals,  professors,  readers,
      lecturers and other teaching or non-vacation academic  posts  required
      by the university with the prior approval of the State Government  and
      to prescribe their qualifications and make appointments thereto;

      (10) to (48)     xxx         xxx        xxx

      (49) to  lay  down  for  teachers  and  university  teachers,  service
      conditions including code of conduct, workload, norms  of  performance
      appraisal, and such  other  instructions  or  directions  as,  in  the
      opinion of the university, may be necessary in academic matters;

      (50) to (56)     xxx         xxx        xxx

      (57) to evolve an operational scheme for  ensuring  accountability  of
      teachers,  non-vacation  academic  and  non-teaching  staff   of   the
      university, institutions and colleges;

      (58) to (59)     xxx         xxx        xxx

      (60) to comply with and carry out any directives issued by  the  State
      Government from time to time, with reference to above  powers,  duties
      and responsibilities of the university.


      8. Control of State  Govt.  and  universities:  -  (1)  Without  prior
      approval of the State Government, the university shall not, -

      (a) create new posts of teachers, officers or other employees;

      (b) revise the pay, allowances,  post-retirement  benefits  and  other
      benefits of its teachers, officers and other employees;

      (c) grant any special pay, allowance or other  extra  remuneration  of
      any description whatsoever, including  ex  gratia,  payment  or  other
      benefits having  financial  implications,  to  any  of  its  teachers,
      officers or other employees;

      (d) to (f)  xxx        xxx        xxx

      (g) take any  decision  regarding  affiliated  colleges  resulting  in
      increased financial liability,  direct  or  indirect,  for  the  State
      Government.


      (2) The university shall be competent to incur  expenditure  from  the
      funds received from, -

      (a) various funding agencies without any share  or  contribution  from
      the State Government;

      (b) fees for academic programmes started on self-supporting basis;

      (c)  contributions  received   from   the   individuals,   industries,
      institutions, organisations or any person whosoever,  to  further  the
      objectives of the university;

      (d) contributions or fees for academic or other  services  offered  by
      the university;

      (e) development fund, if any, established by the university;

      for the purposes of -

      (i) creation of post in various categories for specific period;

      (ii) granting pay, allowances and other benefits to the posts  created
      through its own funds provided  those  posts  are  not  held  by  such
      persons, who are holding the posts for which  government  contribution
      is received;

      (iii) starting any academic programme on self-supporting basis;

      (iv) incurring expenditure on any development work;


      without referring the matter for approval  of  the  State  Government,
      provided  there  is  no  financial  liability,  direct  or   indirect,
      immediate or in future on the State Government.


      (3) The  State  Government  may  in  accordance  with  the  provisions
      contained in this Act, for the purpose  of  securing  and  maintaining
      uniform standards, by notification in the Official Gazette,  prescribe
      a Standard Code providing for the classification, manner and  mode  of
      selection  and  appointment,  absorption  of  teachers  and  employees
      rendered surplus, reservation of post  in  favour  of  member  of  the
      Scheduled Castes, Scheduled Tribes, Denotified Tribes (Vimukta  Jatis)
      and Nomadic Tribes and Other Backward Classes, duties  workload,  pay,
      allowances,  postretirement  benefits,  other  benefits,  conduct  and
      disciplinary matters and other conditions of service of the  officers,
      teachers and other employees of the universities and the teachers  and
      other employees in the affiliated colleges and recognised institutions
      (other than those managed and  maintained  by  the  State  Government,
      Central Government and the  local  authorities).  When  such  Code  is
      prescribed, the provisions made in the Code  shall  prevail,  and  the
      provisions made in the Statutes,  Ordinances,  Regulations  and  Rules
      made under this Act, for matter included in the  Code  shall,  to  the
      extent to which they are inconsistent with the provisions of the Code,
      be invalid.


      (4) In case of failure of the university to exercise powers or perform
      duties specified  in  section  5  or  where  the  university  has  not
      exercised such powers or performed such duties  adequately,  or  where
      there has been a failure to comply with any order issued by the  State
      Government, the State Government may, on making such inquiry as it may
      deem fit, issue a directive to the university for proper  exercise  of
      such powers or performance of such duties or comply  with  the  order;
      and it shall be the  duty  of  the  university  to  comply  with  such
      direction.


      Provided that, in  case  the  university  fails  to  comply  with  the
      directives, the State Government shall call  upon  the  university  to
      give reasons in writing why the directives were not complied with.  If
      the State Government is not satisfied with  the  explanation,  it  may
      refer the matter to the Chancellor for taking necessary  action  under
      sub-section (3) of section 9.


      (5)   xxx        xxx         xxx
       [


      14. Powers and duties of Vice-Chancellor:-

      (1) to (4)  xxx        xxx        xxx

      (5) It shall be the duty of the Vice-Chancellor  to  ensure  that  the
      directives of the State Government if any and the  provisions  of  the
      Act, Statutes, Ordinances and Regulations are  strictly  observed  and
      that the decisions of the authorities, bodies and committees which are
      not inconsistent with the Act, Statutes, Ordinances or Regulations are
      properly implemented.

      (6) to (14)      xxx         xxx        xxx


      51. Statutes:- Subject to the provisions of this Act, the Statutes may
      provide for all or any of the following matters, namely :-

      (1) to (4)  xxx        xxx        xxx


      (5) the principles governing the seniority and service  conditions  of
      the employees of the university;

      (6) to (7)  xxx        xxx        xxx


      (8) qualifications, recruitment, workload, code of conduct,  terms  of
      office,  duties  and  conditions  of   service,   including   periodic
      assessment of teachers, officers and other employees of the university
      and the affiliated colleges (except  those  colleges  or  institutions
      maintained by the State or Central Government or a  local  authority),
      the provision of pension, gratuity and provident fund, the  manner  of
      termination of their services, as approved by the State Government;

      (9) to (17)      xxx         xxx        xxx


      52. Statutes how made:-

      (1) to (5)  xxx        xxx        xxx


      (6) Notwithstanding anything contained in the foregoing  sub-sections,
      the Chancellor, either  suo  motu  or  on  the  advice  of  the  State
      Government, may, direct the  university  to  make  provisions  in  the
      Statutes in respect of any matter specified by him and if  the  Senate
      fails to implement such a direction within sixty days of its  receipt,
      the  Chancellor  may,  after  considering   the   reasons,   if   any,
      communicated by the Senate for its  inability  to   comply  with  such
      direction, make or amend the Statutes suitably.


      115. Repeal and savings:- 
(1) On and from the date of commencement  of
      this Act,-

      (a) the Bombay University Act, 1974  (Mah.XXII of 1974);
      (b) the Poona University Act, 1974 (Mah.XXIII of 1974);
      (c) the Shivaji University Act, 1974 (Mah.XXIV of 1974);
      (d)  the  Dr.  Babasaheb  Ambedkar  Marathwada  University  Act,  1974
      (Mah.XXV of 1974);
      (e) the Act, 1974 (Mah.XXVI of 1974);
      (f) the Shreemati Nathibai Damodar Thackersey Women’s University  Act,
      1974 (Mah.XXVII of 1974)
      (g) the Amravati University Act, 1983 (Mah.XXXVII of 1983); and
      (h) the North Maharashtra Universities Act, 1989, shall stand repealed
      (Mah.XXIX of 1989).

      (2) Notwithstanding the repeal of the said Acts, -

      (i) to (xi)      xxx         xxx        xxx

      (xii) all Statutes and Ordinances made under the said Acts in  respect
      of  any  existing  university  shall,  in  so  far  as  they  are  not
      inconsistent with the provisions of this Act, continue in force and be
      deemed  to  have  been  made  under  this  Act  in  respect   of   the
      corresponding university by the Senate or the Management  Council,  as
      the case may be of that  university,  until  they  are  superseded  or
      modified by the Statutes made under this Act;”


      The 1981 Rules.


      “50. Earned leave for Government Servant serving in Departments  other
      than Vacation Department— (1)(a) The leave account of every Government
      servant  who  is  serving  in  a  Department  other  than  a  vacation
      Department, shall be credited with earned leave, in  advance,  in  two
      instalments of 15 days each on the first day of January  and  July  of
      every calendar year.


      (b) The leave at the credit of a Government servant at  the  close  of
      the previous half year shall be carried forward to the next half year,
      subject to the condition that the leave so carried  forward  plus  the
      credit for the half year do not exceed the limit of 240 days.


      52. Vacation Department—A  Vacation  Department  is,  subject  to  the
      exceptions and to the extent stated in Appendix II,  a  department  or
      part of a department to which regular vacations  are  allowed,  during
      which a Government servant serving in the department is  permitted  to
      be absent from duty.


      54. Earned leave for persons serving  in  Vacation  Departments—(1)  A
      Government servant serving in  a  Vacation  Department  shall  not  be
      entitled to any earned leave in respect of duty performed in any  year
      in which he avails himself of the full vacation.


      (2)(a) In respect of any year in which  a  Government  servant  avails
      himself of a portion of the vacation, he shall be entitled  to  earned
      leave in such proportion of 30 days, as the number of days of vacation
      not taken bears to the full vacation:

      Provided that no such  leave  shall  be  admissible  to  a  Government
      servant not in permanent employment in respect of the  first  year  of
      his service.

      (b) If, in any year, the Government servant does not avail himself  of
      any vacation earned leave shall be admissible to  him  in  respect  of
      that year under rule 50.

      Explanation – For the purposes of this rule, the term “year” shall  be
      construed as meaning not calendar year but twelve months  actual  duty
      in a Vacation Department.

      Note 1.- A Government Servant entitled to vacation shall be considered
      to have availed himself of a vacation  or  a  portion  of  a  vacation
      unless he had been required by general or special order  of  a  higher
      authority to forego such vacation or portion of a  vacation;  provided
      that if he has been prevented by such order from  enjoying  more  than
      fifteen days of the vacation, he shall be considered to  have  availed
      himself of no portion of the vacation.

      Note 2.- When a Government servant serving in  a  Vacation  Department
      proceeds on leave before completing a full year of  duty,  the  earned
      leave admissible to him shall be calculated not with reference to  the
      vacations which fall during the period of actual duty rendered  before
      proceeding on leave but with reference  to  the  vacations  that  fall
      during the year commencing from the date on  which  he  completed  the
      previous year of duty.


                                 APPENDIX II
                                (See rule 52)
        List of Government servants serving in Vacation/Non-vacation
                                 Department


      The  following  classes  of  Government  servants  serve  in  Vacation
      Departments when the conditions of rule 52 are fulfilled:—


      1.  (a)  Under  the  Directorate  of  Education,  —(i)  All  Heads  of
      Government Educational Institutions belonging to Class I, II and III.

      (ii) Professors, Readers, Associate Professors,  Research  Assistants,
      Lecturers, Assistant Lecturers, Demonstrators, Tutors in Class  I,  II
      and III, as the case may be, in Government Arts, Science, Commerce and
      Law Colleges.

      (iii) Professors, Lecturers, Co-ordinators, Assistant  Lecturers  etc.
      in Class I, II and III as the case  may  be,  in  Government  Training
      Colleges.

      (iv)  Physical  Instructors  in  Government  Colleges  and   Secondary
      Schools.

      (v)  Laboratory  Assistants,  Laboratory  Attendants   in   Government
      Colleges and Secondary Schools.

      (vi) Lecturers or other teachers in  Government  Primary,  Middle  and
      Secondary Schools and  in  Primary  Training  Institutions  and  other
      special Institutions.

      (vii) All other  staff  in  Government  Institutions  excepting  those
      mentioned as belonging to Non-Vacation Department.”


      Statutes
      “424. (3). Leave.—


      (a)-(b)     *    *     *


      (c) Earned leave.—


      (a) The confirmed non-vacation teacher shall  be  entitled  to  earned
      leave at the rate of one-eleventh of the period spent on duty  subject
      to his accumulating maximum of 180 days of leave.


      (b) The teacher other than the one included  in  (a)  above  shall  be
      entitled to one twenty-seventh of the period spent  on  duty  and  the
      period of earned leave as provided  in  the  proviso  to  Section  423
      subject to his accumulation of maximum of 180 days. For  this  purpose
      the period of working days only shall be considered.


      424(C). Encashment of unutilised earned leave  on  superannuation.—The
      teacher shall be entitled to encash earned leave  in  balance  to  his
      credit on the date of his superannuation subject to a maximum  of  180
      days.


      In case the teacher is required to serve  till  the  end  of  academic
      session beyond the date of his superannuation, he shall be entitled to
      encash the balance of earned leave to his credit on the  date  of  his
      actual retirement from service.”

16.   An analysis of the provisions of the 1994 Act shows that  universities
constituted under Section 3(1) are autonomous and they are,  by  and  large,
independent  in  their  functioning.   However,  the  State  Government  can
exercise control in  some  matters  including  those  which  have  financial
implications and issue directives which are  binding  on  the  universities.
The creation of posts and conditions of service of  the  teaching  and  non-
teaching staff which impacts finances of  the  universities  are  some  such
matters.  Section 8  makes  it  obligatory  for  the  universities  to  seek
approval of the State Government for creation  of  new  posts  of  teachers,
officers or other employees and revision of  their  pay,  allowances,  post-
retirement benefits, etc.  No university can grant special pay or  allowance
or extra remuneration to the employees except with  the  prior  approval  of
the State Government. Likewise, any decision regarding  affiliated  colleges
resulting  in  additional  financial  liability  can  be  taken  only  after
obtaining approval from the State Government.   The  Statutes  framed  under
Section 51(8) in matters like qualifications,  recruitment,  workload,  code
of conduct, terms of office, duties and conditions of service  of  teachers,
officers and other employees of the university and the affiliated  colleges,
except those maintained by the  State  or  Central  Government  or  a  local
authority, require approval of the State Government.  By virtue  of  Section
115(2)(xii), the Statutes  framed  by  various  universities  prior  to  the
enforcement of the 1994  Act  were  continued  till  their  supersession  or
modification by the Statutes made under the new Act.

17.   We may now advert to the 1981 Rules.  Rule 50(1) lays down that  leave
account of every  Government  servant  other  than  the  one  serving  in  a
Vacation Department shall be credited with earned leave, in advance, in  two
instalments of 15 days each in January and July of every year and the  leave
at the credit of a Government servant at the  close  of  the  previous  half
year is to be carried forward to the next half year subject to  the  maximum
limit of 240 days.  Rule 52 defines the Vacation Department as a  department
or part thereof to which regular vacations are allowed and during  which  an
employee serving in that department is permitted to  be  absent  from  duty.
As per Appendix  II,  which  finds  reference  in  Rule  52,  all  Heads  of
Government Education Institutions belonging to Class I, Class II  and  Class
III and Professors, Readers, Associate  Professors  and  other  teachers  in
Class I, II and III employed in Government Arts, Science, Commerce  and  Law
Colleges, Government Training Colleges, Physical Instructors  in  Government
Colleges  and   Secondary   Schools,   Laboratory   Assistants,   Laboratory
Attendants in Government  Colleges  and  Secondary  Schools,  Lecturers  and
other teachers in Government Primary, Middle and Secondary  Schools  and  in
Primary Training Institutions and other special Institutions as  also  other
staff in Government Institutions, except those  mentioned  as  belonging  to
Non-Vacation  Department,  are  treated   as   serving   in   the   Vacation
Departments.

18.   Although, Rule 54 has the caption “Earned leave  for  persons  serving
in Vacation Departments”, sub-rule (1) thereof declares  that  a  Government
servant serving in a Vacation  Department  shall  not  be  entitled  to  any
earned leave in respect of duty performed in any year  in  which  he  avails
the full vacation.  Sub-rule (2) of Rule 54 deals with a situation in  which
a Government servant avails himself of a portion of the  vacation,  in  that
event he is entitled to earned leave in such proportion of 30  days  as  the
number of days of vacation not taken bears to the full vacation. Clause  (b)
of Rule 54(2) lays down that if a Government servant does not avail  himself
of any vacation in any year, earned leave shall  be  admissible  to  him  in
respect of that year in terms of Rule 50.

19.    We  are  in  complete  agreement  with  the  view  expressed  by  the
coordinate Bench in Khandesh College Education  Society,  Jalgaon  v.  Arjun
Hari Narkhede (2011) 7 SCC 172, that the provisions contained  in  the  1981
Rules are not applicable to the university teachers and the teachers of  the
affiliated colleges because  they  are  not  Government  servants  but  this
cannot lead to an inference that the affiliated  colleges  are  entitled  to
reimbursement of the amount paid to the teachers in lieu  of  earned  leave.
Though the Statutes framed  by  the  Pune  University  under  the  1974  Act
entitle the teachers of the affiliated colleges to get the benefit of  leave
encashment, there is no provision either in that Act  or  in  the  1994  Act
which obligates  the  State  Government  to  extend  the  benefit  of  leave
encashment to the university teachers or to the teachers of  the  affiliated
colleges and the mere fact that the Statutes of  the  particular  university
provide for grant of leave encashment to the teachers, does not entitle  the
concerned university or  college  to  claim  reimbursement  from  the  State
Government as of right.

20.   The criticism of the directives issued by the State Government to  the
universities to amend the Statutes under which the teachers  are  given  the
benefit of leave encashment is wholly misplaced. 
It is neither  the  pleaded
case of respondent Nos. 1 and 2 nor it has been  argued  by  Shri  Gonsalves
that the teachers employed in the Government colleges are  entitled  to  the
benefit of leave encashment. 
Therefore, the State Government  was  perfectly
justified  in  issuing  directives  to  the  universities  to  amend   their
Statutes.
 No doubt, in some of the communications reference  has  been  made
to Rules 50, 52 and 54 of the 1981 Rules but this does not detract from  the
fact that the State Government is empowered to issue such directives.
 It  is
a different thing that for almost two years the Pune  University  failed  to
take action in accordance with the binding directives issued  by  the  State
Government.

21.   In paragraph 18 of the Khandesh College Education Society, Jalgaon  v.
Arjun Hari  Narkhede  (supra),  
this  Court  has  taken  cognizance  of  the
directives issued  by  the  State  Government  from  time  to  time  to  the
universities to amend the Statutes and  
observed  that 
 till  the  Statutes,
which are not  inconsistent  with  the  provisions  of  the  1994  Act,  are
modified or superseded the same shall continue to remain in force. 
However,
these observations cannot be interpreted in a  manner  which  would  entitle
the university or the affiliated colleges to claim reimbursement.

22.   In the result, the appeals are allowed, the impugned  orders  are  set
aside and the writ petition filed by respondent Nos. 1 and 2  is  dismissed.
The parties are left to bear their own costs.

                                                             ..….………………….…J.
                                                 [G.S. SINGHVI]


                                                             ..….………………….…J.
                                                 [H.L. GOKHALE]
New Delhi,
January 29, 2013.
-----------------------
25


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