Laxmibai v. Bhagwantbuva, (2013) 4 SCC 97
S. 10 r/w S. 3(a) and Ss. 8, 9, 11 and 16 - Persons who may be adopted - Proof of custom - Bar of a special custom
that a male child from outside family cannot be adopted - Whether such custom existed and was proved by respondentdefendants for their region/family - There being nothing to establish negative fact that a child from outside family could
not be adopted or that any such attempt was made but was resisted and discarded - Mere positive evidence that for sake
of convenience, only a child from within family was adopted on four such occasions over a period of 375 years, held, not
sufficient to establish and prove existence of a negative fact (or custom) that a male child from outside family could not
be adopted - Custom, held, cannot be proved by way of logic or analogy - A negative fact cannot be proved by adducing
positive evidence - Special customs which prevail in a family, a particular community, etc. require strict proof and
respondent-defendants having failed to prove the same, appellate courts could not have discarded adoption deed on
basis of alleged custom - Therefore, validity of adoption deed, considering other factors as well, upheld,
S. 3(a) r/w S. 10 - Expression custom and usage" - Meaning of, clarified by explaining what is general custom" and
special custom" - Custom vis--vis statute - Held, custom cannot modify statutory law unless it is expressly saved by
statute - Manner in which a valid custom can be proved and established, explained - Strict construction prescribed for a
custom which is in derogation of general rule - But custom of which judicial notice is taken need not be proved.
Ss. 16 and 8 to 11 - S. 16 presumption that a registered adoption deed is valid - Challenge thereto on technical ground
that natural parents did not put their signatures as parties but as witnesses - Tenability - There being substantial
compliance with requirements of S. 16 (i.e. there being an adoption ceremony in which natural parents in presence of
large number of witnesses giving the child in adoption to adoptive mother) and thereafter an adoption deed being
registered with seven attesting witnesses - Natural parents also deposing in court regarding their clear willingness in
giving their son in adoption - Held, S. 16 presumption can be validly invoked in present case - Respondent-defendants
who challenged adoption did not rebut presumption that adoption was made as per HAMA, 1956 - Natural parents had
agreed and taken part in the adoption ceremony - Mere technicalities that natural parents signed as witnesses in the
adoption deed and not as executing parties cannot defeat purpose of adoption - Further, it is not a case where there
were no witnesses except attesting natural parents - Thus validity of adoption deed, upheld,
Ss. 16 and 8 to 11 - S. 16 presumption - Validity of adoption deed - Onus of proof and manner of appreciation of
evidence - Held, though a heavy burden is initially placed on propounder to prove adoption, once a registered adoption
deed is presented before court, onus shifts to person who challenges adoption - Still, however court has to take note of
various other circumstances,
Witnesses - Credibility of - Considerations and relevant factors - PW 4 being a freedom fighter, medical man by
profession and being involved in public life - His evidence, on facts, held, cannot be labelled as that of an interested
witness, (2013) 4 SCC 97-E
The Practical Lawyer
http://www.supremecourtcases.com Eastern Book Company Generated: Thursday, June 13, 2013 Civil Procedure Code, 1908
Or. 18 R. 16 - Immediate recording of evidence prior to commencement of trial - Grounds sufficient for such advance
and immediate recording - Held, mere old age/apprehension of death is not a sufficient cause - Only if person/witness
concerned is suffering from some serious ailment or is on deathbed, would the same constitute a sufficient cause - As
there was no such sufficient cause in present case, lady concerned being 70 yrs old and in good state of health, even if
an application would have been made in this regard under Or. 18 R. 16 by appellant-plaintiffs to record said lady's
evidence, trial court would not have allowed it - Hence, no adverse inference could be drawn against appellant-plaintiffs
for not having filed application under Or. 18 R. 16, (2013) 4 SCC 97-F
Family and Personal Laws
Hindu Law
Adoption by widow - Standard of proof required - Adoptive mother's deceased husband's deceased brother's wife not
being examined - However, adoption sufficiently proved by other evidence - Said non-examination, held, cannot be
treated as a suspicious circumstance - Reiterated, that it is quality and not quantity of evidence that is relevant - Further
held, if any party challenges the statement of any witness it can be impeached by following procedure under S. 138,
Evidence Act by cross-examining such witness, (2013) 4 SCC 97-G
Evidence Act, 1872
S. 134 - Quality vis--vis quantity of evidence - Principles, reiterated, (2013) 4 SCC 97-H
Evidence Act, 1872
S. 138 - Cross-examination - Manner in which correctness of the statement of a witness might be impeached in a fair
and valid manner, explained, (2013) 4 SCC 97-I
Civil Procedure Code, 1908
Ss. 96, 100 and Or. 41 R. 33 - Appeal from original decree - Proper exercise of appellate power - Reversal of findings of
trial court on basis of: (a) mere surmises and conjectures, (b) by doubting credibility of witnesses thoroughly crossexamined and relied on by trial court and not discredited by other evidence, and (c) on technical ground that executing
parties (i.e. natural parents) had not signed as parties but as witnesses in adoption deed though there had been
substantial compliance to raise presumption under S. 16 of HAMA, 1956, and which presumption stood unrebutted - Said
reversal of findings of trial court, held, improper - When substantial justice and technical considerations are pitted against
each other, cause of substantial justice deserves to be preferred and courts may in larger interests of administration of
justice excuse or overlook a mere irregularity or a trivial breach of law for doing real and substantial justice and pass
orders which will serve interest of justice best - Therefore, judgment and decree of trial court restored, (2013) 4 SCC 97-
J
Family and Personal Laws
Hindu Law
Ss. 16 and 8 to 11 - Photographic evidence of adoption ceremony - Evidence of photographer - When credible and can
be relied on to prove substantial compliance so as to raise presumption under S. 16 - PW 2 photographer being
thoroughly cross-examined, his deposition being relied on by trial court and no expert being examined to discredit his
evidence - Evidence of PW 2, held, is credible and cannot be doubted on ground that another photograph was not
examined - Appellate court erred in considering irrelevant material, while most relevant evidence i.e. adoption ceremony
The Practical Lawyer
http://www.supremecourtcases.com Eastern Book Company Generated: Thursday, June 13, 2013and adoption deed, were disregarded on basis of mere surmises and conjectures - Hence, decree of trial court restored,
(2013) 4 SCC 97-K
Civil Procedure Code, 1908
Ss. 96, 100 and Or. 41 R. 33 - Appeal from original decree - Reversal of findings of trial court - Principles to be followed
and caution required on part of appellate court, reiterated - Reappreciation of evidence, only where there are compelling
and substantial reasons and not otherwise - Manner in which reappreciation of evidence should be done, indicated,
Print Page
S. 10 r/w S. 3(a) and Ss. 8, 9, 11 and 16 - Persons who may be adopted - Proof of custom - Bar of a special custom
that a male child from outside family cannot be adopted - Whether such custom existed and was proved by respondentdefendants for their region/family - There being nothing to establish negative fact that a child from outside family could
not be adopted or that any such attempt was made but was resisted and discarded - Mere positive evidence that for sake
of convenience, only a child from within family was adopted on four such occasions over a period of 375 years, held, not
sufficient to establish and prove existence of a negative fact (or custom) that a male child from outside family could not
be adopted - Custom, held, cannot be proved by way of logic or analogy - A negative fact cannot be proved by adducing
positive evidence - Special customs which prevail in a family, a particular community, etc. require strict proof and
respondent-defendants having failed to prove the same, appellate courts could not have discarded adoption deed on
basis of alleged custom - Therefore, validity of adoption deed, considering other factors as well, upheld,
S. 3(a) r/w S. 10 - Expression custom and usage" - Meaning of, clarified by explaining what is general custom" and
special custom" - Custom vis--vis statute - Held, custom cannot modify statutory law unless it is expressly saved by
statute - Manner in which a valid custom can be proved and established, explained - Strict construction prescribed for a
custom which is in derogation of general rule - But custom of which judicial notice is taken need not be proved.
Ss. 16 and 8 to 11 - S. 16 presumption that a registered adoption deed is valid - Challenge thereto on technical ground
that natural parents did not put their signatures as parties but as witnesses - Tenability - There being substantial
compliance with requirements of S. 16 (i.e. there being an adoption ceremony in which natural parents in presence of
large number of witnesses giving the child in adoption to adoptive mother) and thereafter an adoption deed being
registered with seven attesting witnesses - Natural parents also deposing in court regarding their clear willingness in
giving their son in adoption - Held, S. 16 presumption can be validly invoked in present case - Respondent-defendants
who challenged adoption did not rebut presumption that adoption was made as per HAMA, 1956 - Natural parents had
agreed and taken part in the adoption ceremony - Mere technicalities that natural parents signed as witnesses in the
adoption deed and not as executing parties cannot defeat purpose of adoption - Further, it is not a case where there
were no witnesses except attesting natural parents - Thus validity of adoption deed, upheld,
Ss. 16 and 8 to 11 - S. 16 presumption - Validity of adoption deed - Onus of proof and manner of appreciation of
evidence - Held, though a heavy burden is initially placed on propounder to prove adoption, once a registered adoption
deed is presented before court, onus shifts to person who challenges adoption - Still, however court has to take note of
various other circumstances,
Witnesses - Credibility of - Considerations and relevant factors - PW 4 being a freedom fighter, medical man by
profession and being involved in public life - His evidence, on facts, held, cannot be labelled as that of an interested
witness, (2013) 4 SCC 97-E
The Practical Lawyer
http://www.supremecourtcases.com Eastern Book Company Generated: Thursday, June 13, 2013 Civil Procedure Code, 1908
Or. 18 R. 16 - Immediate recording of evidence prior to commencement of trial - Grounds sufficient for such advance
and immediate recording - Held, mere old age/apprehension of death is not a sufficient cause - Only if person/witness
concerned is suffering from some serious ailment or is on deathbed, would the same constitute a sufficient cause - As
there was no such sufficient cause in present case, lady concerned being 70 yrs old and in good state of health, even if
an application would have been made in this regard under Or. 18 R. 16 by appellant-plaintiffs to record said lady's
evidence, trial court would not have allowed it - Hence, no adverse inference could be drawn against appellant-plaintiffs
for not having filed application under Or. 18 R. 16, (2013) 4 SCC 97-F
Family and Personal Laws
Hindu Law
Adoption by widow - Standard of proof required - Adoptive mother's deceased husband's deceased brother's wife not
being examined - However, adoption sufficiently proved by other evidence - Said non-examination, held, cannot be
treated as a suspicious circumstance - Reiterated, that it is quality and not quantity of evidence that is relevant - Further
held, if any party challenges the statement of any witness it can be impeached by following procedure under S. 138,
Evidence Act by cross-examining such witness, (2013) 4 SCC 97-G
Evidence Act, 1872
S. 134 - Quality vis--vis quantity of evidence - Principles, reiterated, (2013) 4 SCC 97-H
Evidence Act, 1872
S. 138 - Cross-examination - Manner in which correctness of the statement of a witness might be impeached in a fair
and valid manner, explained, (2013) 4 SCC 97-I
Civil Procedure Code, 1908
Ss. 96, 100 and Or. 41 R. 33 - Appeal from original decree - Proper exercise of appellate power - Reversal of findings of
trial court on basis of: (a) mere surmises and conjectures, (b) by doubting credibility of witnesses thoroughly crossexamined and relied on by trial court and not discredited by other evidence, and (c) on technical ground that executing
parties (i.e. natural parents) had not signed as parties but as witnesses in adoption deed though there had been
substantial compliance to raise presumption under S. 16 of HAMA, 1956, and which presumption stood unrebutted - Said
reversal of findings of trial court, held, improper - When substantial justice and technical considerations are pitted against
each other, cause of substantial justice deserves to be preferred and courts may in larger interests of administration of
justice excuse or overlook a mere irregularity or a trivial breach of law for doing real and substantial justice and pass
orders which will serve interest of justice best - Therefore, judgment and decree of trial court restored, (2013) 4 SCC 97-
J
Family and Personal Laws
Hindu Law
Ss. 16 and 8 to 11 - Photographic evidence of adoption ceremony - Evidence of photographer - When credible and can
be relied on to prove substantial compliance so as to raise presumption under S. 16 - PW 2 photographer being
thoroughly cross-examined, his deposition being relied on by trial court and no expert being examined to discredit his
evidence - Evidence of PW 2, held, is credible and cannot be doubted on ground that another photograph was not
examined - Appellate court erred in considering irrelevant material, while most relevant evidence i.e. adoption ceremony
The Practical Lawyer
http://www.supremecourtcases.com Eastern Book Company Generated: Thursday, June 13, 2013and adoption deed, were disregarded on basis of mere surmises and conjectures - Hence, decree of trial court restored,
(2013) 4 SCC 97-K
Civil Procedure Code, 1908
Ss. 96, 100 and Or. 41 R. 33 - Appeal from original decree - Reversal of findings of trial court - Principles to be followed
and caution required on part of appellate court, reiterated - Reappreciation of evidence, only where there are compelling
and substantial reasons and not otherwise - Manner in which reappreciation of evidence should be done, indicated,
No comments:
Post a Comment