BHIMASHYA AND ORS. versus SMT. JANABI @JANAWWA

Citation: [2006] SUPP. 10 S.C.R. 628 · Decided: 11-12-2006 · Supreme Court of India · Bench: ARIJIT PASAYAT · Disposal: Dismissed
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Judgment (excerpt)

A 
B 
BHIMASHY A AND ORS. 
v. 
SMT. JANABI @JANA WWA 
DECEMBER 11, 2006 
[DR. ARIJIT PASAYA T AND LOKESHWAR SINGH PANT A, JJ.] 
Partition-Suit for-Owner of suit properties dying leaving behind two 
daughters-Suit for partition by one daughter claiming % share in properties-
C Husband of·qther daughter claiming himself to be adopted son of deceased 
under the local custom, and certain properties as his self-acquired-High 
Court not accepting the case of adoption but holding one item of scheduled 
properties as defendant's self-acquired-Held, ·no specific plea relating to 
custom made nor issue in this regard framed nor evidence lead to prove 
custom-Order of High Court does not suffer from any.infirmity to warrant 
D interference-Jurisprudence-Custom-Connotation of 
Hindu Adoption and Maintenance Act, 1956: 
ss. 3 and 4-Adoption-Custom regarding-Held, custom qannot prevail 
against statutory law unless saved expressly or by necessary implication-
£ Hindu Law (Hindu Code)-Article 3. 
Respondent-plaintiff filed a suit for partition and separate possession 
of half share in the suit properties and for mesne profits. It was stated in the 
plaint tha! her father, '.F' had two wives and had two daughters from each wife; 
that 'F' died leaving behind the suit properties, which were ancestral 
F properties, and the two daughters, namely, the plaintiff and the wife of 
defendant no. 1, defendants no. 2 and 3 being sons of defendant no. 1, and as 
such the plaintiff was entitled to half share in the said properties. Defendant 
no. 1 filed written statement stating that he was the adopted son of 'F' and the 
suit-house properties were his self acquired properties. The trial court held 
G that defendant no. 1 was the adopted son of' F'. But, the first appellate court 
held that the claim of defendant no. 1 regarding adoption was untenable. In 
the second appeal the High Court gave partial relief to defendant no. 1 holding 
that item no. 3 of the scheduled properties was his self-acquired property, 
and rejected his claim of adopted son, as at the time of alleged adoption the 
H 
628 
BHIMASHY Av. JANABl@JANA WWA 
629 
Hindu Adoption and Maintenance Act, 1956 had come into operation and A 
defendant no. 1 being more than 15 years of age could not have been adopted. 
In the appeal filed by defendant no. 1 it was contended that, irrespective 
of the 1956 Act, according to the custom prevalent in the area and the families 
of the parties, the adoption was clear, legal and proper. 
Dismissing the appeal, the Court 
B 
HELD: 1.1. It is well established principle of law that though custom 
has the effect of overriding law which is purely personal, it cannot prevail 
against a statutory law, unless it is thereby saved expressly or by necessary 
implication. [637-F) 
C 
Mookka Kone v. Ammakutti Amma/, AIR (1928) Mad 299, (FB) referred 
to. 
The Magistrate of Dunbar v. The Duchess of Roxburgha, (1835) 6 ER 
1642, Noble v. Durell, (1789)100 ER 569 and Paxton v. Courtnay (1860) 2 F D 
& F 131, referred to. 
1.2. A "custom", in order to be binding, must derive its force from the 
fact that by long usage it has obtained the force of law. Custom implies, not 
that in a given contingency a certain course would probably be followed, but 
that contingency has arisen in the past and that a certain course has been E 
followed, and it is not at all within the province of Courts to extend custom by 
the process of deduction from the principles which seem to underline customs 
which have been definitely established. [638-E, G, HJ 
Thakur Gokalchand v. Parvin Kumari, AIR (1952) SC 231; V.T.S. F 
Chandrashekhara Mudalier v. Kulandeivelu Mudalier, AIR (1963) SC 185; 
Hem Singh v. Harnam Singh, AIR (1954) SC 581; Kishori Lal v. Chaltibai, 
AIR (1959) SC 504 and Amarendra Mansingh v. Sanatan Singh, AIR (1933) 
PC 155, referred to. 
MR., Hammerton v. Honey, 24 WR 603, referred to. 
Sir H.S. Gour's Hindu Code, Vol. I, 5th Edn. Halsbury, 4th Edn., Vol. 
12, para 401, referred to. 
G 
2.1. While an adoption may be a proper act, inspired in many cases by 
religious motives, courts are concerned with an adoption, only as the exercise H 
630 
SUPREME COURT REPORTS [2006] SUPP. IO S.C.R. 
A of a legal right by certain persons. (636-E-FJ 
Gherula/ v. Mahadeo Das, AIR (1959) SC 781, referred to. 
Fender v. St. John Mildmay (1938) AC 1, referred to. 
B 
Mulla's Principles of Hindu Law, Fifteenth Edition, pages 67; S.V. Gupta, 
Hindu Law Third edn. P. 899; Sir W. Jose,
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