Page 1 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.

Page 2 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 The aforementioned suit was withdrawn subsequently,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.

2

Page 3 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

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Page 4 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.

4

Page 5 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

5

Page 6 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

6

Page 7 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

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Page 8 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.

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Page 9 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,

9

Page 10 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.”

10

Page 11 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 xxxx

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

11

Page 12 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

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Page 13 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

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Page 14 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

14

Page 15 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

15

Page 16 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

16

Page 17 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:

17

Page 18 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:

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Page 19 “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

19

Page 20 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

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Page 21 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)

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Page 22 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

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Page 23 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

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Page 24 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

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Page 25 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

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Page 26 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

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Page 27 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

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Page 28 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.

28

Page 29 (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

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Page 30 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.

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Page 31 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

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Page 32 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

32

Page 33 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

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Page 34 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.

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Page 35 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,

35

Page 36 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

36

Page 37 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

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