- (1.) This appeal has been preferred against the impugned judgment andorder 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 whichthe High Court has affirmed the judgment and order of the FirstAppellate Court in Regular Civil Appeal No. 92 of 1977, dismissingCivil Suit No. 52 of 1971, which stood allowed by the trial court videjudgment 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 Maharajwas vested with the exclusive right to carry the Palki and Padukas ofSri Sant Eknath Maharaj from Paithan to Pandharpur at the time ofAshadi Ekadashi. He died in 1951, leaving behind his widow, namely,Smt. Laxmibai. Krishnabuva. Brother of Narayanbuva had pre-deceasedhim leaving behind his widow, Smt. Gopikabai. B. After the death of Narayanbuva, the appellant Smt. Laxmibai, wasvested with the exclusive right to carry the Palki and Padukas. Therespondents herein, who are also descendants of Sri Sant EknathMaharaj, served notice dated 6.5.1971 upon Shri Vasant BhagwantPandav, 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 SuitNo. 47 of 1971 against Shri Vasant Bhagwant Pandav, Smt. Laxmibai andSmt. Gopikabai, restraining them from effectuating the adoption ofRaghunath. The aforementioned suit was withdrawn subsequently, inSeptember 1974. It was during the pendency of the said suit filed by therespondents, that on 11.5.1971, Raghunath was adopted by Smt. Laxmibaiafter the performance of all requisite ceremonies which were conductedin the presence of a huge crowd, wherein the process of giving andtaking of the child by the parents of Raghunath and by Smt. Laxmibairespectively, was held. The ceremony was performed by a priest, andseveral photographs were also taken on this occasion. On the same day,an adoption deed was executed and registered in this respect, and thesaid deed was duly signed by seven witnesses. Owing to the fact thatthe respondents had tried to create some hindrance in the performanceof the duties of the appellants, in relation to carrying the Palkiand Padukas, Smt. Laxmibai and Smt. Gopikabai filed Suit No. 52 of1971, against the respondents seeking a decree of perpetual injunctionpreventing them from causing any obstruction or interference in theexercise of their exclusive rights, on 14.6.1971. D. The suit was contested by the respondents and a large number ofissues were framed. The trial court decreed the suit, holding thatthe adoption of Raghunath by Smt. Laxmibai was valid; that theadoption deed was a legal document which could in fact, be reliedupon; that the ceremony of giving and taking of the child and thatperformance of all other religious ceremonies was conducted ; and alsothat 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 nocustom of adopting of a male child only from within the said familyand, consequently, the adoption of Raghunath by Smt. Laxmibai fromoutside, was upheld. E. Aggrieved, the respondents preferred Civil Appeal No. 92 of 1977and for certain reliefs, the appellants also filed a cross appeal.Various points were considered by the First Appellate Court, afterwhich, the decree of the Civil Court was reversed vide judgment anddecree dated 1.8.1980, by which it was held that the respondents hadproved, that there did in fact exist a custom which prohibited thetaking of a male child in adoption from outside. The adoption itselfwas suspicious as independent witnesses were not examined. Thewitnesses who proved the validity of the adoption were interestedwitnesses, and the adoption deed was also suspicious. F. Aggrieved, the appellants preferred a Second Appeal, which wasdismissed by the High Court vide impugned judgment concurring with theFirst Appellate Court. Hence, this appeal.
(3.) Shri Aarohi Bhalla, learned counsel appearing for theappellants, has submitted that there is a presumption of validity withrespect to the registered adoption deed under Section 16 of HinduAdoptions and Maintenance Act, 1956 (hereinafter referred to as 'the Act 1956'). Therefore, the appellate courts committed an error indoubting the validity of the registered adoption deed. The burden ofrebutting 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 anyreference to the said deed at all. Therefore, in the absence of anyattempt 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 375years, a total of four adoptions have taken place, and that it wasonly in each of these cases that a male child from within the familywas adopted, and not one from outside. Thus, the appellate courtscommitted an error in holding that there was a custom to this effect.In the absence of any evidence, a statement alleging that either oneof the said adoptive parents wanted to take a child in adoption fromoutside, and that the same was attempted, must not be accepted.Moreover, the occurance of only four instances, over a period ofalmost four centuries, is not sufficient to establish the existence ofa custom. The non-examination of Smt. Laxmibai during the trial of thesuit on account of her death, prior to the commencement of the trial,cannot be taken as a circumstance against the appellants. Thus, theappellate courts have erred in taking such a perverse view. Thephotographer present at the adoption ceremony, who was examined by theappellants before the trial court, was not asked any questions in thecross-examination by the respondents, with respect to any doubts theyhad regarding the genuineness of either the negatives, or thephotographs of the ceremony. In the absence of resorting to such acourse by the respondents, the appellate courts could not have drawnany adverse inference as regards his deposition, particularly when thephotographer had proved the existence and validity of both thenegatives, and the photographs. Thus, the judgments and decrees ofthe appellate courts are liable to be set aside, and the judgment ofthe trial court deserves to be restored.;