LexSALEKH CHAND (DEAD) BY LRS. versus SATYA GUPTA AND ORS.
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[2008] 3.S.C.R. 833 ... '\ SALEKH CHAND (DEAD) BY LRS. A ~ v. SATYA GUPTA AND ORS. (Civil Appeal No. 1380 of 2002) MARCH 4, 2008 B (DR. ARIJIT PASAYAT AND P. SATHASIVAM, JJ.) ,,~ ·\ Hindu Adoption and Maintenance Act, 1956/Hindu Law; Article 3(1) and (2): Adoption of sister's son by a Hindu- Validity of- Division c in property of original owner amongst his four sons/lineal descendants - His one son allegedly adopted son of his sister - Widow of adopted son allegedly sold her share in the suit property to appellants - Trial Court held the adoption as invalid D - Reversed by first appellate Court - High Court held that .. ; prevalent customs did not allow adoption of sister's son - Correctness of - Held: Correct - Since adoption in question took place prior to enactrrent of 1956 Act, Old Hindu Law applicable -Adoption of son!Dattaka evolved around two texts E of 'Manu' and 'Vashishta' and a metaphor 'SAUNAKA' - Adoption of son recognized more due to secular.reasons than religious necessity - However, foundation of adoption of son is based on religious efficacy - It is incumbent on the claimant ' " ) to prove the custom on which he relies for a valid adoption - Customs from its long use obtained force of law and became F a rule - When a custom is against the written texts of Hindu Law, one who sets up such a custom must prove it by a clear and unequivocal language - In the instant case, appellants- vendee failed to establish that the adoption of sister's son by G vendor/descendant of original owner of the property in quesiton was in terms of customs prevalent at that time - Moreovetf ... i existence of such a custom was a/so not established - Hence, appeal sans merit, thus dismissed. ·'!i.·, 833 H 834 SUPREME COURT REPORTS [2008] 3 S.C.R. ) A Words and Phrases: ~ 'Customs' - Meaning of in the context of Hindu Code! Old Hindu Law. 'Religious efficacy of sonship' - Applicability of B The question which arose for determination in this , " appeal was .as to whether a Hindu belonging to Vaish r community could adopt a son as per custom prevalent in that co~munity. c Appellants contended that the custom to adopt the son of sister was established; that there was enough material to show that the family members treated 'C' as the adopted son and, therefore, the First Appellate Court's judgment and decree should have been maintained; that D the Trial Court and the High Court should not have given \ ,. - any undue importance. to the fact about the Jenau ceremony being held on the same day, overlooking the fact that the evidence was being given by the witness who was more than 80 years old; and that in any event do away E with the requirement to prove legality of adoption and that the adoption took place sometime in 1928-1929. Dismissing the appeal, the Court < ,,_ HELD: 1.1 Since the alleged adoption took place F prior to enactment of Hindu Adoption and Maintenance Act, 1956, the old Hindu Law is applicable. (Para - 13) • [846-B] 1.2 Relevant provisions relating to custom as defined G in the Hindu Code are that Custom is an established practice at variance with the general law; that a custom varying the general law may be a general, local, tribal or family custom; that general customs includes a custom -+ ... common to any considerable class of persons; that a ·H custom Which:. is applicable to a locality, tribe, sect or a SALEKH CHAND (DEAD) BY LRS. v. 835 SATYA GUPTA AND ORS. • family is called a special custom; that Custom caf!not A override express law; that Custom has the effect of modifying the general personal law, but it does not override the statute law, unless it is expressly sav.ed by it; that such custom must be ancient, uniform, certain, peaceable, continuous and compulsory; that no custom B .,, ~ is valid if it is illegal, immoral, unreasonable or opposed -.:- to public policy; that he who relies upon custom varying the general law must plead and prove it; that Custom must be established by clear and unambiguous evidence. (Para - 16) [847-D-H; 848-A, BJ C Hindu Code Volume 1, Fifth Edition by Sir H.S. Gour - referred to. 1.3 Custom must be ancient, certain and reasonable " as is generally said. It will be noticed that in the definition D i in Cl. (a) of s. 3 of the Hindu Adoption and Maintenance Act, the expression 'ancient' is not used, but what is intended is observance of custom or usage for a long
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