LexLAXMIBAI (DEAD) THR. LRS. & ANR. versus BHAGWANTBUVA (DEAD) THR. LRS. & ORS.
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A
B
[2013) 1 S.C.R. 632
LAXMIBAI (DEAD) THR. LRS. & ANR.
v.
BHAGWANTBUVA (DEAD) THR. LRS. & ORS.
(Civil Appeal No. 2058 of 2003)
JANUARY 29, 2013
{DR. B.S. CHAUHAN AND V. GOPALA GOWDA, JJ.]
Hindu Adoptions and Maintenance Act, 1956:
c
s.16 read with ss.10 and 11 - Adoption of male child by
a female - Adoption deed got registered - Presumption of a
valid adoption - Held: If there is a registered adoption deed,
there is a presumption uls 16 to the effect that the adoption
has been made in compliance with the provisions of the Act
D until and unless such presumption is disproved - Burden to
rebut the presumption lies on the person who challenges such
adoption - In the instant case, defendants/respondents never
made any attempt whatsoever, to rebut the presumption.
ss. 10 and 11 read withs. 16 - Adoption - Held: In the
E instant case, there is ample evidence on record to prove
occurrence of giving and taking ceremony - Adoptive mother
put her thumb impression on the deed, and it was also signed
by natural parents of child - The deed was signed by
witnesses - Appellate courts could not have drawn any
F 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 - It is, therefore, held that the
document was valid.
G
H
Custom - Defendant pleading a special family custom
that a child from outside the family could not have been ·
adopted - Held: He who relies upon custom varying general
law, must plead and prove it - Special customs which prevail
632
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LAXMIBAI (DEAD) THR. LRS. v. BHAGWANTBUVA 633
(DEAD) THR. LRS.
in a family, a particular community etc., require strict proof A
and the defendants/respondents have faiied to prove the
same - Evidence Act, 1872 - s.57 - Judicial notice.
Code of Civil Procedure, 1908:.
0. 18, r. 16. - Power to examine witness immediately -
B
Held: Mere apprehension of death of a witness cannot be a
sufficient cause for immediate examination of a witness -
More so, it is the discretion of court to come to a conclusion
as to whether there is a sufficient cause or not to examine the
. witness immediately - In the instant case, plaintiff was just C
above 70 years of age and hale and hearty and, as such,
there was no occasion for her to file an application under 0.
18, r. 16 CPC for recording statement prior to commencement
of trial.
D
Evidence Act, 1872:
s.134 read with ss.138 and 146 - Number of witnesses
and cross-examination - It is not the number of witnesses but
quality of their evidence which is important - If a party wishes
to raise any doubt as regards correctness of statement of a E
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 - Without this, it is not possible
to impeach his credibility.
The appellant's husband, being the descendant of
Shri Sant Eknath Maharaj, was vested with exclusive right
F
to carry the Palki and Padukas of Sant Maharaj from
Paithan to Pandharpur, at -the time of Ashadi Akadashi;
and after her husband's death, the appellant was vested G
with the said right. (The brother of appellant's husband
had predeceased him.) On 11.5.1971 the appellant
adopted 'R', the son of 'VBP'. On the same day the
adoption deed was executed and registered. The
appellant and her sister-in-law (the wife of the deceased H
634
SUPREME COURT REPORTS
[2013] 1 S.C.R.
A brother of appellant's husband) filed a suit against the
respondents seeking a decree of perpetual injunction
preventing them from causing any obstruction or
interf'erence in exercise of their exclusive rights to
carrying the Palki and Padukas. The trial court decreed
B the suit, inter a/ia, holding that the adoption was valid. The
appellant died during the trial and the adopted child
inherited all her property. However, the first appellate
court held that the respondents had proved that there
existed a custom which prohibited the taking of a male
C child in adoption from outside. The adoption deed was
also held to be suspicious. The second appeal of the
appellants, having been dismissed by the High Court, led
them to file an appeal.
D
Allowing the appeal, the Court
HELD: 1.1. Custom is a rule, which in a particular
family, a particular class, community, or in a particular
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