(2017] l l S.C.R. 28 A RATANLAL @ BABULAL CHUNILAL SAMSUKA v. SUNDARABAIGOVARDHANDASSAMSUKA(D)TH.LRS.& ORS. B (Civil Appeal No. 6378 of2013) NOVEMBER 22, 2017 [N. V. RAMANA AND AMITAVA ROY, JJ.] Hindu Adoption and Maintenance Act, 1956: C ss.2(a), 3 and JO - Adoption - Of a married man aged 32 years - Challenged - Held: A person, if married, cannot be adopted, unless there is 47 custom or usage, as defined ins. 3(a), permits so -For establishinff a valid custom, there should be continuity, certainty, long usage anc( reasonability - Customs, at variance with general D law must be proved strictly - Appel/a/If, in the present case has failed to prove that the custom on which he was relying had attained the status of general custom prevalent among the concerned communizv - The burden to prove adoption is also hea>y- ln absence qf documentary evidence in support thereof, court should be cautious in relying upo11 oral evidence - Appellant, in the fi'1cts of the case, E failed lo plead and prove the factum of adoption - Trial court wrong(v placed the burden of proving the adoption on the plaintiff which is contrary to law - Evidence. Evidence:

Proof of custom - Held: Custom, at variance with general F law, should be strictly proved - There is presumption in favour of law- When the claim of custom is against such general presumption, onus of provinft such custom lied on who sets up the plea of its existence - Val,dity of a custom cannot be measured solely by the elemenl of e.1ptess sanction accorded by courts of law - Judicial G decision recognizing a custom, may he relevant. but these are not indispensable for its establishment. Proof of adoption - Burden to prove - Held: Burden of proving adoption is heavy - Court to be cautious in relying an oral evidence in absence of documentary evidence - Placing burden to prove adoption, on the person who is challenging it, is contrary to law.H 28 RATANLAL@BABULAL CHUNlLAL SAMSUKAv. SUNDARABAI 29 GOVARDHANDAS SAMSUKA(D)TH. LRS. Pleadings: A Absence of pleadings - Affect - Held: Parties to a suit are governed by their pleadings - In absence of proper pleading, any amount of evidence is of no conseq11e11ce. Dismissing the appeal, the Court B HELD: I.I It is clear from ss. 3 and IO of Hindn Adoption and Maintenance Act, 1956 that a person cannot be adopted if he or she is a married person, unless there is a custom or usage, as defined under Section 3(a), applicable to the parties which permits persons who arc married being taken in adoption. [Para 11][36- cC]

1.2 Custom commands legitimacy not by an authority of law formed by the State, rather from the public acceptance and acknowledgment. As per the settled law under Section 3(a) of the Act, the following ingredients arc necessary for establishing a valid custom- continuity, certainty, long usage and rcasonability. D As customs, when pleaded arc mostly at variance with the general law, they should be strictly proved. Generally, there is a presumption that law prevails and when the claim of custom is against such general presumption, then, whoever sets up the pica of existence of any custom has to discharge the onus of proving E it, with all its requisites to the satisfaction of the Court in a most clear and unambiguous manner. There are many types of customs to name a few-general customs, local customs and tribal customs etc. and the burden of proof for establishing a type of custom depends on the type and the extent of usage. It must be shown that the alleged custom has the characteristics of a genuine F custom viz., that it is accepted willfully as having force of law, and is not a mere practice more or less common. The acts required for the establishment of customary law ought to be plural, uniform and constant. [Paras 12, 13)(36-E; 37-B-E] Thakur Gokal Chand v. Pravin Kumari AIR 1952 SC G 231 : [1952] SCR 825; The Collector of Madura v. Moottoo Ramalinga Sathupathi 12 MIA 397 (1868) -relied on.

1.3 Custom evolves by conduct, and it is therefore a mistake to measure its validity solely by the element of express sanction H 30 SUPREME COURT REPORTS [20 l 7] 11 S.CR. A accorded by courts oflaw. The characteristic of the great majority of customs is thut they arc essentially non-litigious in origin. They arise not from any conllict of rights adjusted, but from practices prompted by ~he convenience of society. A judicial decision recognizing a custom may be relevant, but these a.re not indispensable for its establishment. When a custom is to be provedB by judicial notice, the relevant test would be to sec if the custom has been acted upon by a court of superior or co-ordinate jurisdiction in the same jurisdiction to the extent 1hat justifies the court, which is asked to apply it, in assuming that the persons or the class of persons concerned in that area look upon the same c as binding in relation to circumstances similar to those under consideration. 1'1 the present case there was no pleading or proof which could justify that the above standards were met. (Para 14J[37-F-H; 38-A) l.4 The appellant in the present case has failed to produce D any evidence to· prove that such practice has attained the status of general custom prevalent among the concerned community.

Custom, on which the appellant is relying, is a matter of proof and cannot be b~sed on a priori reasoning or logical and analogical deductions, as $ought to be canvassed by the appellant herein. [Para 171[38-G] E Rup Chand v. Jambu Prasad (1910) ILR 32 247; Sheokuarbai v. Jeoraj AIR 1921 PC 77; Sheokuarbai v. Jeorclj AIR 1921 PC 77 - referred to. Black's Law Dictionary - referred to. F 2.1 The only evidence, the appellant has adduced for proving his adoption, is his own testimony and a word of a priest who bad performed the ceremony. A general custom which the appellant intends to prove requires greater proof than the one, appellant adduc~d before the court. Moreover, there is no dispute G with regard to the fact that the appellant did not plead in his written statement about existence of any custom as such. Parties to a suit arc always governed by their pleadings. Any amount of evidence or proof adduced without there being proper pleading is of no consequence and will not come to the rescue of the parties. (Para 18](38-H; 39-A-BJ H RATANLAL@BABULALCHUNILALSAMSUKAv. SUNDARABAI 31 GOVARDHANDAS SAMSUKA (D) TH. LRS. 2.2 The burden of proving adoption is a heavy one and if A there is no documentary evidence in support of adoption, the Court should be very cautious in relying upon oral evidence. [Para 19][39-C]

2.3 There arc lot of contradictions in the evidence of witnesses on all material aspects of adoption. A thorough glance B at the entire evidence makes it clear that the appellant who asserts the fact that he is adopted. failed to plead and prove the factum of adoption. All the circumstances pleaded by the appellant arc not properly explained by adducing cogent evidence to the satisfaction of the Court. The trial court placed burden on the plaintiff to prove the adoption whiCh is contrary to law. The C appellant failed to satisfy the Court that any question oflaw much less substantial questions oflaw arise in this appeal which warrant interference of this Court. (Para 24][42-C-E] Kishori Lal v. Ml'I. Chaltibai AIR 1959 SC 504: [1959] D Suppl. SCR 698; Rahasa Pandiani (dead) by LRs. and Ors. v. Gokulananda Panda and Ors. AIR 1987 SC 962 - relied on. Case Law Reference (1952] SCR 825 relied on Para 12 E 12 MIA 397 (1868) relied on Para 12 (1910) ILR 32 247 referred to Para 15 AIR 1921 PC 77 referred to Para 16 (1959) Suppl. SCR 698 relied on Para 19 F AIR 1987 SC 962 relied on Para 20 CIVIL APPELLATE JURISDICTION: Civil Appeal No. 6378 of2013. From the Judgment and Order dated 22.12.2006 of the High Court G of Judicature at Bombay in First Appeal No. 1662 of 1996. Arv ind S. Avhad, Abhishek Krishna, Advs. for the Appellant. S. N. Bhat, Adv. for the Respondents. H 32 SUPREME COURT REPORTS [2017] 11 S.C.R.

A fhe Judgment of the Court was delivered by N. V. Ju.MANA, J, I. The appellant is before us aggrieved by the judgment µnd decree passed by the High Court of Judicature at Bombay, in Fi~st Appeal No. 1662of1996, dated 22.12.2006. The High Court has partly allowed the appeal by setting aside the judgment of trial B court and declared that the l '' defendant, who is the appellant herein, was not the adopted son of late Govardhandas Laxmichand Samsuka and consequently the appellant herein was permanently restrained from representing himself as son of Govardhandas and f urthcr restrained him from naming hlmself as Ratanlal Govardhandas Samsuka. 2. A brief reference to the factual matrix necessary for disposalc of the case on hand are, late Govardhandas has a brother by name Chunilal Laxmichand who is none other than the father of the I'' defendant/appQllant herein. Right from his childhood, appellant used to reside with his Pfiternal uncle Govardhandas. During his life Govardhandas used to carry on business of timber in the name of defendant No. 5 D initially and later he inducted into business the appellant and defendant Nos. 2 to 4 as partners. After the death of Govardhandas his wife Sundarabai who is the original plaintiff in the suit was also taken as a partner. When the other partners failed to give her share in the business, she issued notice to all the partners to give accounts of 5'" defendant E partnership firm and also to pay the amount of her share.

3. In the year 1984, wife and children of Chunilal i.e. brother of Govardhandas issued notice, to Sundarabai and the appellant, stating that appellant is1the adopted son oflate Govardhandas as such he cannot claim any share' in his natural family and further sought for partition of the joint family prope1ties, for that Sundarnbai issued a reply notice denying F the factum of adoption and thereafter filed the present suit i.e. Special Civil Suit No. 395/1987 for dissolution and accounts of defendant No. 5 paitnership firm and also sought for a declaration that the appellant is not the adopted son of late Govardhandas. During the pendency of the suit, Sundarabal died and her daughters were brought on record. G 4. The trial court, after a full-fledged trial, has partly decreed the suit declaring that the deceased Sundarabai, original plaintiff had 1/5'' share in the assets and liabilities of the partnership firm and passed preliminary decree for taking accounts. But the declaration claimed by the plaintiff that appellant is not the adopted son oflate Govardhandas H RATANLAL@BABULALCHUNlLALSAMSUKA v. SUNDARABAI 33 GOVARDHANDAS SAMSUKA(D)TH. LRS. [N. V. RAMANA, J.] was rejected and the trial court came to the conclusion that plaintiff A failed to prove that defendant is not the adopted son oflate Govardhandas. The reasoning of the trial court can be summed up as under: a. Plaintiff failed to prove that appellant herein is not the adopted son of late Govardhandas.

B b. Continuation of biological father's name over adopted father's name even alter the 1973 is inconsequential in view of other evidences on record. c. That some letters and invitations were addressed to appellant with his adoptive father's name. c d. That the priest [Chaturbuj Sharma] who is alleged to have pc1formed the adoption ceremony has deposed in favor of the appellant. e. Photographs taken at the time of the adoption ceremony arc self-explanatory. It is to be noted that in one particular D photograph appellant is seen with a garland and absence of Asha or her husband in the photographs clearly proves that adoption had taken place one day prior to the marriage of Asha [daughter ofGovardhandas and Respondent]. 5. Aggrieved by the judgment and decree passed by the trial court, the plaintiffs carried the matter to the High Court in First Appeal Nb:•\ E i' \ 1662/96. The appellant herein has not questioned the preliminary decree ,, , 1 passed for accounts and declarntion that late Sundarabai is entitled to l/ 5'' share in 5" defendant company as such those findings have become final. The High Court. while partly allowing the appeal, concluded that the appellant herein is not the adopted son as the conduct and F circumstances surrounding the adoption are suspicious. The following circumstances have weighed with by the High Court in coming to the conclusion that the factum of adoption was not proved with cogent evidence-

a. Non-production of negatives of alleged photographs taken G during the adoption ceremony. b. That the photographs do not portray any ceremony being performed by the priest involving the appellant and his adoptive parents. H 34 SUPREME COURT REPORTS [20 J 7] 11 S.C.R. A c. The alleged adoption took place one day before the marriage of Asha (daughter of respondent), which casts shadow on the photographs taken during the ceremony. d. That there was no evidence on record other than the oral testimony of one Chaturbuj Sharma that he performed the B adoption ceremony as a priest. e. That appellant himself has contradicted the oral testimony of the alleged priest Chaturbuj Sharma concerning the ceremony of taking the appellant into the lap ofGovardhandas. f. That the letters exhibited to show the change of name does c not cogently establish the adoption. g. From the date of adoption up to filing the suit, the appellant continued to use his earlier name without adopting the name of the adopted father. h. The Income tax rnturns of the appellant after 1973 indicatesD that he continued to use his earlier name. I. No explanation forthcoming from the appellant concerning the above suspicious circumstances. J. Moreover, the adopted mother herself is contesting the fact um E of adoption. 6. Learned counsel appearing on behalf of the appellant has argued that-

a. The custom of married men getting adopted is prevalent in Jain community, which has been proved by the priest who F performed the adoption ceremony. b. The custom of adoption of married men was judicially recognized in catcna of cases. c. The appellant has been validly adopted in consonance with the accepted customs.G 7. On the other hand, learned counsel appearing on behalf of the respondents has contended that- a. The appellant has not pleaded any custom in Jain community which allows adoption of married men. H RATANLAL@BABULAL CHUNILAL SAMSUKA v. SUNDARABAI 35 GOVARDHANDAS SAMSUKA(D)TH. LRS. [N. V. RAMANA,J.] b. That the adoption should be accepted only when it is established A with cogent and consistent proof, as it has the potential to alter the succession. c. The appellant retained his earlier name and acquired properties subsequently in his earlier name itself. B 8. In the light of the submissions advanced before us, we are called upon to answer two short questions concerning the alleged adoption of the appellant herein by late Govardhandas in the year 1973. Hence the following issues arise for consideration before this Court-!. Whether the person who alleges the existence of a custom need not prove the same because it is judicially accepted? c 2. Whether the appellant cottld plead and prove the factum of adoption?

9. In response to the issue number one, first and foremost, we would like to deal with tht• submission of the learned counsel for the D appellant that the custom of giving married man in adoption in Jain community is judicially accepted and hence the adoption need not be proved. It is an admitted fact that the parties concerned in this case are Jains. There is no dispute that Jains are governed by the Hindu Adoption and Maintenance Act, 1956 [hereinajier 'the Acf for brevity J and therefore certain provisions which may throw some light on the question, E have to be looked into. Section 3 of the Act deals with definitions. The term 'custom' is defined as under- 3. DEFINITIONS- In this Act unless the context otherwise requires- (a) the. expressions "custom" and "usage" signify any rule which, having been continuously and uniformly observed for F a long time, has obtained the force of law among Hindus in any local :irea, 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; G l 0. Section l 0 of the Act provides thus- 10. PERSONS WHO MAY BE ADOPTED- No person shall be capable of being taken in adoption unless the following comlitions are fulfilled, namely- H 36 SUPREME COURT REPORTS (2017) ll S.C.R.

A (iii) he <1>r she has not been married. unless there is a custom or usage applicable to the parties which permits persons who are married being taken in adoption; (iv) he qr she has not completed the age of fifteen years, unless there is, a custom or usage applicable to the parties which B permits1persons who have completed the age of fifteen years being taken in adoption. 11. From the aforesaid provisions, it is clear that a person cannot be adopted if he or she is a married person, unless there is a custom or usage, as defined! under Section 3(a), applicable to the parties which permits persons who arc married being taken in adoption.c

12. India has a strong tradition of respect for difference and diversity which is reflected under the Hindu family laws as it is applicable to diverse commul)ities living from the southern tip to no11hern mountains, from western plains to eastern hills. Diversity in ow· country brings along D various customs which defines what India is. Law is not oblivious of this fact and sometimes allows society to be governed by customs within the foundation oflaw, It is well known that a custom commands legitimacy not by an authority of law formed by the State rather from the public acceptance and aoknowlcdgmcnt. This Court in Thakur Gokal Chand '" Pravi11 K11111ari, AIR 1952 SC 231, has explained the ingredients of a E valid custom in the following manner-" A custom,, in order to be binding. must derive its force from the fact that by long usage it has obtained the force of law, but the English rule that "a custom. in order that it may be legal and binding, must have been used so long that the memory of man F runndh not tu the contrary" should not be strictly applied to Indian condition. 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".G

Black's Law Dict,omu·y defines customary law as "rnstoms that are accepied as legql re1111ire111ents or obligatory rules of conduct. practices and belief.~ that are so i-ital and intrinsic a part of a social and economic system that they are treated as !/"they are laws."' H 1 Bryan A. Ciarner, Black's Law Dictionary (JOtl1 Eds.), p. 468. RATANLAL@BABULALCHUNlLALSAMSUKAv. SUNDARABAI 37 GOVARDHANDAS SAMSUKA (DJ TH. LRS. [N. V. RAMAN A, J.] Privy Council in Tlte Collector of Madura "· Moottoo Ramali11gt1 A Satlt11patlti, 12 MIA 397 (1868), has observed that "under the Hindu System of law, clear proof of usage will outweigh the written text of law". 13.As per the settled law under Section 3(a) the Act. the following ingredients are necessary for establishing a valid custom- B a. Continuity. b. Certainty. c. Long usage. d. And reasonability. c

As customs. when pleaded arc mostly at variance with the general law, they should be strictly proved. Generally, there is a pq:sumption that law prevails and when the claim of custom is against such general presumption, then, whoever sets up the plea of existence of any custom has to discharge the onus of proving it, with all its requisites to the D satisfaction of the Court in a most clear and unambiguous manner. It should be noted that, there are many types of customs to name a few-gcneral customs, local customs and tribal customs etc. and the burden of proof for establishing a type of custom depend on the type and the extent of usage. It must be shown that the alleged custom has the E characteristics of a genuine custo,m viz., that it is accepted willfully as having force of law, and is not a mere practice more or less common. The acts required for the establishment of customary law ought to be plural, uniform and constant.

14. Custom evolves by conduct, and it is therefore a mistake to Fmeasure its validity solely by the element of express sanction accorded by courts of law. The characteristic of the great majority of customs is that they are essentially non-litigious in origin. They arise not from any conflict of rights adj ustcd, but from practices prompted by the convenience of society. A judicial decision rccogn.izing a custom may be relevant, but these arc not indispensable for its establishment. When a custom is to be G proved by judicial notice, the relevant test would be to sec if the custom has been acted upon by a court of superior or coordinate jurisdiuion in the same jurisdiction to the extent that justifies the com1, which is asked to apply it, in assuming that the persons or the class of persons concerned in that area look upon the same as binding in relation to circumstances H 38 SUPREME COURT REPORTS . [2017] 1 l S.C.R. A similar to those under consideration. In this case at hand there was no pleading or proof which could justify that the above standards were met. 15. It wpuld not be out of context to observe certain judicial decisions which throw some light on the issue raised in this case instant. In R11p Chand v. Jambu Prasad, (19 !O) !LR 32 247. Privy Council B held that-

"The cu~tom alleged in the pleading was this: "Among the Jains Adoption is no religious ceremony. and under the law or custom there is no restriction of age or marriage among them." And that appears to be the custom found by the High Court to exist. But c upon the argmncnt before their Lordships it was strenuously contended that the evidence in the present case, limited as it is to a comparatively small number of centers of Jain population, was insufficient to establish a custom so wide as this. and that no narrower custom was either alleged or proved. In their Lordships' opinion there is great weight in these criticisms.D enough to make the present case an unsatisfactory precedent if in any future instance fuller evidence regarding the alleged custom should be forthcoming". 16. In Slteok11arhlli v. Jeoraj, AIR 1921 PC 77, Privy Council observed that, among the Sitambari Jains the widow of a son less JainE can legally adqpt to him a son without any express or implied authority from her deceased husband to make an adoption, and the adopted son may at the time of his adoption be a grown-up and married man. The only ceremony to the validity of such an adoption is the giving and taking of the adopted son. F

17. It is very much evident that the appellant in this case has failed to produce any evidence to prove that such practice has attained the status of general custom prevalent among the concerned community. Custom, on which the appellant is relying, is a matter of proof and cannot be based on a priori reasoning or logical and analogical deductions, as G sought to be canvassed by the appellant herein. Hence the issue is answered against the appellant. 18. In response to issue number two, we arc concerned here with the custom of adopting married sons in the community of the appellant. The only evid~nce, the appellant has adduced, is his own testimony and H RATANLAL@BABULALCHUNlLALSAMSUKAv. SUNDARABAI 39 GOVARDHANDAS SAMSUKA(D) TH. LRS. [N. V. RAMAN A. J.] a word of a priest who had performed the ceremony. A general cnstom A which the appellant intends to prove requires greater proof than the one appellant adduced before the court. Moreover. there is no dispute with regard to the fact that the appellant did not plead in his written statement about existence of any custom as such. Parties to a suit arc always governed by their pleadings. Any amount of evidence or proof adduced B without there being proper pleading is of no consequence and will not come to the rescue of the parties.

19. At this juncture it would be necessary to observe the law laid down by this Court in numerous cases thatthe burden of proving adoption is a heavy one and if there is no documentary evidence in support of adoption, the Court should be very cautious in relying upon oral evidence. C This Court held so in Kislrori Lal v. Mst. C/wltibai, AIR 1959 SC 504, We can do no better than to quote the relevant passage from the above judgment which reads as under:- " As an adoption results in changing the course of succession, D depriving wives and daughters of their rights and transferring prope1ties to comparative strangers or more remote relations it is necessa1y that the evidence to support it should be such that it is free from all suspicion of fraud and so consistent and probable as to leave no occasion for doubting its truth. Failure to produce accounts, in circumstances such as have been proved in E the present case, would be a verv suspicious circumstance. (emphasis supplied) 20. In Ralwsa Pandiani (dead) by LRs. ttnd Ors. v. Gokula11antla Panda and others. AIR 1987 SC 962, aforesaid aspect was observed as under: F

"When the Plaintiff relies on oral evidence in support of the claim that he was adopted by the adoptive father in accordance with the Hindu rites, and it is not supported by any registered document to establish that such an adoption had really and as a matter of fact taken place, the Court has to act with a great deal of caution G and circumspection. Be it realized that setting up a spurious adoption is not less frequent than concocting a spurious will, and equally, if not more difficult to unmask. And the Court has to be extremely alert and vigilant to gnard against being ensnared by H 40 SUPREME COURT REPORTS (2017] ! 1 S.C.R. A schemers who indulge in unscrupulous practices out of their lust for property. If there are any suspicious circumstances, just as the propounder of the will is obliged to dispel the cloud of susplcio1n. the burden is on one who claims to have been adopted to dispel the same beyond reasonable doubt. In the case of an adoption which is not supported by a registeredB document ~r any other evidence of a clinching nature if there exist suspi¢ions circumstances, the same must be explained to the satisfaction of the conscience of the Court by the party contending that there was such an adoption. Such is the position as ar. adoption would divert the normal and natural course of c succession. Experience of life shows that just as there have been spurious claims about execution of a will, there have been spurious claims about adoption having taken place.

And the C urt has therefore to be aware of the risk involved the claim of ado tion if there are circumstances which arouse the. suspicion of the Court and D the conscience of the Court is not satisfied that the evidence preferred to support such an adoption is beyond reproach". (emphasis supplied)

2 l. In the light of the above precedents, it would be necessary to E observe statements of certain witnesses. Appellant, himself, got examined as a witness, whidh is marked as Ex. 121. He stated that after death of his biological father in l 972. he came to Nasik to continue his education while living with Govardhandas at his residence. As per his evidence, during the rnarriag¢ ofAsha, Govardhandas decided to adopt the appellant and the ceremony was held on 08.07.1973, one day before the marriage. F The adoption ceremony was held at the residence ofGovardhandas. As appellant and Govardhandas were from the Jain community, there was no bar in their e~mmunity either for adoption of a married son or concerning the age of the adopted son. It is stated that there is no custom in their community to reduce the adoption in writing. One Chaturbuj Maharaj was the priest who performed the said ceremony in the presence G ofhis biological mother, sisters and other relatives. His biological mother gave appellant in adoption to Govardhandas and Sundarabai i.e. the original plaintiff Govardhandas and Sundarabai performed the pooja of the said ceremony. Said ceremony was held with the destre and consent of Sundarabai an~ Govardhandas. After the appellant was given in H [email protected] 41 GOVARDHANDAS SAMSUKA(D)TH. LRS. (N. V. RAMANA,J.]

adoption to Govardhandas, appellant was instructed by the priest to sit A on the lap ofGovardhandas and Sundarabai. Atlerthe ceremony, lunch was served to all persons, who had attended the ceremony. It is to be noted that invitation cards were printed but the same were sent separately and not with the marriage invitation card. In the cross examination he states that even though the marriage was held on 09.07.1973, certain Bmarriage ceremonies were held as per community traditions on 08.07 .1973. That he was aged thirty-two when he was allegedly adopted and he does not know of any examples of adoption ofa thirty-two-year-old man. He admits that he did not submit any document to show that he was using his adoptive father's name after 1973. He further states that he had filed an application before the municipal council for succession c rights, but the same was not produced in the suit. Moreover, he states that he was filing income tax returns in his earlier name 'Ratanlal Chunilal'.

22. One Chaturbuj Laxminarayan Sharma was examined as witness no. 2 on behalf of the appellant. His deposition was marked as D Ex. No. 152. He stated that he knew Govardhandas for 30 years. He used to perform ceremonies for his family including the adoption ceremony of the appellant which had taken place at the residence of Govardhandas. He deposed that the ceremony was attended by a gathering of 100 to 200 people. According to him he had performed ENavgrah pooja, Kuldcvi pooja, Laxmi-narayan pooja, havan and sank.alp as part of adoption. Thereafter, name of the appellant was changed from Ratanlal Chunilal to Ratanlal Govardhandas. At the time of the ceremony, mother of the appellant gave hand of the appellant in the hands of Govardhandas. Photographs were taken at the time of the ceremony. In the cross examination he stated that invitation card for the F ceremony was published and distributed. He was unable to tell who decided to perform adoption ceremony by giving hand of the appellant. He admits that in Jain community, person to be adopted has to be seated on the lap of the adopting father. But he stated that Ratanlal was not asked to take a scat on the lap of Govardhandas as he was weak and Gdefendant No. I (Ratanlal) was healthier; this is a glaring contradiction between the evidence of appellant and the priest. One Harakchand Bharsali of Kapoorgaon was adopted after he was married. He was not able to give particulars of such adoption. Further he states that he does not know of any other example of adoption of a married person. H

42 SUPREME COURT REPORTS (2017 J 11 S.C.R. A 23. Gi1jappa Gangaram Kothul•,, who was examined as defense witness No. 3, stated that he knew Govardhandas for many years. He recollected that many years ago Govardhandas had discussed the matter ofadoptrng the appellant with him. He was present during the ceremony. He could not recollect whether invitation cards were printed for the adoption ceremony. According to his statement, the adoption ceremonyB was performed ~t the residence of the Govardhandas wherein 200 to 300 persons attended that function. He further stated that no religious ceremony rclati1~g to the marriage had taken place prior to the day of marriage. It is to be noted that Mohan la! and Aj ith have deposed on the same lines in favour of the appellant.

c 24. The evidence as discussed above makes it dear that there are lot of contrndictions in the evidence of witnesses on all material aspects of adoption. A thorough glance at the entire evidence makes it dear that the appellant who asserts the fact that he is adopted by late Govardhandas foiled to pkad and prove the factum of adoption. All the D circumstances pleaded by the appellant arc not properly cxpbincd by adducing cogent evidence to the satisfaction of the Coui1. The trial court placed burdc•1 0J1 the plaintiff to prove the adoption which is contrary to law. The appellant failed to satisfy the Cou11 that any 4ucstion of law much less substantial questions oflaw arise in this appeal which warrant interference of tllis Court. E 25. Having regard to the evidence available on record and the circumstances elucidated herein above. the view tal:en by the High Cou11. being convincingly rcasonabk. we sec no reason to interfere with the judgment of the High Coui1. Accordingly. this appeal is dismissed. There shall be no ardQrs as to costs. F Appeal dismissed.

(2017] l l S.C.R. 28 A RATANLAL @ BABULAL CHUNILAL SAMSUKA v. SUNDARABAIGOVARDHANDASSAMSUKA(D)TH.LRS.& ORS. B (Civil Appeal No. 6378 of2013) NOVEMBER 22, 2017 [N. V. RAMANA AND AMITAVA ROY, JJ.] Hindu Adoption and Maintenance Act, 1956: C ss.2(a), 3 and JO - Adoption - Of a married man aged 32 years - Challenged - Held: A person, if married, cannot be adopted, unless there is 47 custom or usage, as defined ins. 3(a), permits so -For establishinff a valid custom, there should be continuity, certainty, long usage anc( reasonability - Customs, at variance with general D law must be proved strictly - Appel/a/If, in the present case has failed to prove that the custom on which he was relying had attained the status of general custom prevalent among the concerned communizv - The burden to prove adoption is also hea>y- ln absence qf documentary evidence in support thereof, court should be cautious in relying upo11 oral evidence - Appellant, in the fi'1cts of the case, E failed lo plead and prove the factum of adoption - Trial court wrong(v placed the burden of proving the adoption on the plaintiff which is contrary to law - Evidence. Evidence:

Proof of custom - Held: Custom, at variance with general F law, should be strictly proved - There is presumption in favour of law- When the claim of custom is against such general presumption, onus of provinft such custom lied on who sets up the plea of its existence - Val,dity of a custom cannot be measured solely by the elemenl of e.1ptess sanction accorded by courts of law - Judicial G decision recognizing a custom, may he relevant. but these are not indispensable for its establishment. Proof of adoption - Burden to prove - Held: Burden of proving adoption is heavy - Court to be cautious in relying an oral evidence in absence of documentary evidence - Placing burden to prove adoption, on the person who is challenging it, is contrary to law.H 28 RATANLAL@BABULAL CHUNlLAL SAMSUKAv. SUNDARABAI 29 GOVARDHANDAS SAMSUKA(D)TH. LRS. Pleadings: A Absence of pleadings - Affect - Held: Parties to a suit are governed by their pleadings - In absence of proper pleading, any amount of evidence is of no conseq11e11ce. Dismissing the appeal, the Court B HELD: I.I It is clear from ss. 3 and IO of Hindn Adoption and Maintenance Act, 1956 that a person cannot be adopted if he or she is a married person, unless there is a custom or usage, as defined under Section 3(a), applicable to the parties which permits persons who arc married being taken in adoption. [Para 11][36- cC]

1.2 Custom commands legitimacy not by an authority of law formed by the State, rather from the public acceptance and acknowledgment. As per the settled law under Section 3(a) of the Act, the following ingredients arc necessary for establishing a valid custom- continuity, certainty, long usage and rcasonability. D As customs, when pleaded arc mostly at variance with the general law, they should be strictly proved. Generally, there is a presumption that law prevails and when the claim of custom is against such general presumption, then, whoever sets up the pica of existence of any custom has to discharge the onus of proving E it, with all its requisites to the satisfaction of the Court in a most clear and unambiguous manner. There are many types of customs to name a few-general customs, local customs and tribal customs etc. and the burden of proof for establishing a type of custom depends on the type and the extent of usage. It must be shown that the alleged custom has the characteristics of a genuine F custom viz., that it is accepted willfully as having force of law, and is not a mere practice more or less common. The acts required for the establishment of customary law ought to be plural, uniform and constant. [Paras 12, 13)(36-E; 37-B-E] Thakur Gokal Chand v. Pravin Kumari AIR 1952 SC G 231 : [1952] SCR 825; The Collector of Madura v. Moottoo Ramalinga Sathupathi 12 MIA 397 (1868) -relied on.

1.3 Custom evolves by conduct, and it is therefore a mistake to measure its validity solely by the element of express sanction H 30 SUPREME COURT REPORTS [20 l 7] 11 S.CR. A accorded by courts oflaw. The characteristic of the great majority of customs is thut they arc essentially non-litigious in origin. They arise not from any conllict of rights adjusted, but from practices prompted by ~he convenience of society. A judicial decision recognizing a custom may be relevant, but these a.re not indispensable for its establishment. When a custom is to be provedB by judicial notice, the relevant test would be to sec if the custom has been acted upon by a court of superior or co-ordinate jurisdiction in the same jurisdiction to the extent 1hat justifies the court, which is asked to apply it, in assuming that the persons or the class of persons concerned in that area look upon the same c as binding in relation to circumstances similar to those under consideration. 1'1 the present case there was no pleading or proof which could justify that the above standards were met. (Para 14J[37-F-H; 38-A) l.4 The appellant in the present case has failed to produce D any evidence to· prove that such practice has attained the status of general custom prevalent among the concerned community.

Custom, on which the appellant is relying, is a matter of proof and cannot be b~sed on a priori reasoning or logical and analogical deductions, as $ought to be canvassed by the appellant herein. [Para 171[38-G] E Rup Chand v. Jambu Prasad (1910) ILR 32 247; Sheokuarbai v. Jeoraj AIR 1921 PC 77; Sheokuarbai v. Jeorclj AIR 1921 PC 77 - referred to. Black's Law Dictionary - referred to. F 2.1 The only evidence, the appellant has adduced for proving his adoption, is his own testimony and a word of a priest who bad performed the ceremony. A general custom which the appellant intends to prove requires greater proof than the one, appellant adduc~d before the court. Moreover, there is no dispute G with regard to the fact that the appellant did not plead in his written statement about existence of any custom as such. Parties to a suit arc always governed by their pleadings. Any amount of evidence or proof adduced without there being proper pleading is of no consequence and will not come to the rescue of the parties. (Para 18](38-H; 39-A-BJ H RATANLAL@BABULALCHUNILALSAMSUKAv. SUNDARABAI 31 GOVARDHANDAS SAMSUKA (D) TH. LRS. 2.2 The burden of proving adoption is a heavy one and if A there is no documentary evidence in support of adoption, the Court should be very cautious in relying upon oral evidence. [Para 19][39-C]

2.3 There arc lot of contradictions in the evidence of witnesses on all material aspects of adoption. A thorough glance B at the entire evidence makes it clear that the appellant who asserts the fact that he is adopted. failed to plead and prove the factum of adoption. All the circumstances pleaded by the appellant arc not properly explained by adducing cogent evidence to the satisfaction of the Court. The trial court placed burden on the plaintiff to prove the adoption whiCh is contrary to law. The C appellant failed to satisfy the Court that any question oflaw much less substantial questions oflaw arise in this appeal which warrant interference of this Court. (Para 24][42-C-E] Kishori Lal v. Ml'I. Chaltibai AIR 1959 SC 504: [1959] D Suppl. SCR 698; Rahasa Pandiani (dead) by LRs. and Ors. v. Gokulananda Panda and Ors. AIR 1987 SC 962 - relied on. Case Law Reference (1952] SCR 825 relied on Para 12 E 12 MIA 397 (1868) relied on Para 12 (1910) ILR 32 247 referred to Para 15 AIR 1921 PC 77 referred to Para 16 (1959) Suppl. SCR 698 relied on Para 19 F AIR 1987 SC 962 relied on Para 20 CIVIL APPELLATE JURISDICTION: Civil Appeal No. 6378 of2013. From the Judgment and Order dated 22.12.2006 of the High Court G of Judicature at Bombay in First Appeal No. 1662 of 1996. Arv ind S. Avhad, Abhishek Krishna, Advs. for the Appellant. S. N. Bhat, Adv. for the Respondents. H 32 SUPREME COURT REPORTS [2017] 11 S.C.R.

A fhe Judgment of the Court was delivered by N. V. Ju.MANA, J, I. The appellant is before us aggrieved by the judgment µnd decree passed by the High Court of Judicature at Bombay, in Fi~st Appeal No. 1662of1996, dated 22.12.2006. The High Court has partly allowed the appeal by setting aside the judgment of trial B court and declared that the l '' defendant, who is the appellant herein, was not the adopted son of late Govardhandas Laxmichand Samsuka and consequently the appellant herein was permanently restrained from representing himself as son of Govardhandas and f urthcr restrained him from naming hlmself as Ratanlal Govardhandas Samsuka. 2. A brief reference to the factual matrix necessary for disposalc of the case on hand are, late Govardhandas has a brother by name Chunilal Laxmichand who is none other than the father of the I'' defendant/appQllant herein. Right from his childhood, appellant used to reside with his Pfiternal uncle Govardhandas. During his life Govardhandas used to carry on business of timber in the name of defendant No. 5 D initially and later he inducted into business the appellant and defendant Nos. 2 to 4 as partners. After the death of Govardhandas his wife Sundarabai who is the original plaintiff in the suit was also taken as a partner. When the other partners failed to give her share in the business, she issued notice to all the partners to give accounts of 5'" defendant E partnership firm and also to pay the amount of her share.

3. In the year 1984, wife and children of Chunilal i.e. brother of Govardhandas issued notice, to Sundarabai and the appellant, stating that appellant is1the adopted son oflate Govardhandas as such he cannot claim any share' in his natural family and further sought for partition of the joint family prope1ties, for that Sundarnbai issued a reply notice denying F the factum of adoption and thereafter filed the present suit i.e. Special Civil Suit No. 395/1987 for dissolution and accounts of defendant No. 5 paitnership firm and also sought for a declaration that the appellant is not the adopted son of late Govardhandas. During the pendency of the suit, Sundarabal died and her daughters were brought on record. G 4. The trial court, after a full-fledged trial, has partly decreed the suit declaring that the deceased Sundarabai, original plaintiff had 1/5'' share in the assets and liabilities of the partnership firm and passed preliminary decree for taking accounts. But the declaration claimed by the plaintiff that appellant is not the adopted son oflate Govardhandas H RATANLAL@BABULALCHUNlLALSAMSUKA v. SUNDARABAI 33 GOVARDHANDAS SAMSUKA(D)TH. LRS. [N. V. RAMANA, J.] was rejected and the trial court came to the conclusion that plaintiff A failed to prove that defendant is not the adopted son oflate Govardhandas. The reasoning of the trial court can be summed up as under: a. Plaintiff failed to prove that appellant herein is not the adopted son of late Govardhandas.

B b. Continuation of biological father's name over adopted father's name even alter the 1973 is inconsequential in view of other evidences on record. c. That some letters and invitations were addressed to appellant with his adoptive father's name. c d. That the priest [Chaturbuj Sharma] who is alleged to have pc1formed the adoption ceremony has deposed in favor of the appellant. e. Photographs taken at the time of the adoption ceremony arc self-explanatory. It is to be noted that in one particular D photograph appellant is seen with a garland and absence of Asha or her husband in the photographs clearly proves that adoption had taken place one day prior to the marriage of Asha [daughter ofGovardhandas and Respondent]. 5. Aggrieved by the judgment and decree passed by the trial court, the plaintiffs carried the matter to the High Court in First Appeal Nb:•\ E i' \ 1662/96. The appellant herein has not questioned the preliminary decree ,, , 1 passed for accounts and declarntion that late Sundarabai is entitled to l/ 5'' share in 5" defendant company as such those findings have become final. The High Court. while partly allowing the appeal, concluded that the appellant herein is not the adopted son as the conduct and F circumstances surrounding the adoption are suspicious. The following circumstances have weighed with by the High Court in coming to the conclusion that the factum of adoption was not proved with cogent evidence-

a. Non-production of negatives of alleged photographs taken G during the adoption ceremony. b. That the photographs do not portray any ceremony being performed by the priest involving the appellant and his adoptive parents. H 34 SUPREME COURT REPORTS [20 J 7] 11 S.C.R. A c. The alleged adoption took place one day before the marriage of Asha (daughter of respondent), which casts shadow on the photographs taken during the ceremony. d. That there was no evidence on record other than the oral testimony of one Chaturbuj Sharma that he performed the B adoption ceremony as a priest. e. That appellant himself has contradicted the oral testimony of the alleged priest Chaturbuj Sharma concerning the ceremony of taking the appellant into the lap ofGovardhandas. f. That the letters exhibited to show the change of name does c not cogently establish the adoption. g. From the date of adoption up to filing the suit, the appellant continued to use his earlier name without adopting the name of the adopted father. h. The Income tax rnturns of the appellant after 1973 indicatesD that he continued to use his earlier name. I. No explanation forthcoming from the appellant concerning the above suspicious circumstances. J. Moreover, the adopted mother herself is contesting the fact um E of adoption. 6. Learned counsel appearing on behalf of the appellant has argued that-

a. The custom of married men getting adopted is prevalent in Jain community, which has been proved by the priest who F performed the adoption ceremony. b. The custom of adoption of married men was judicially recognized in catcna of cases. c. The appellant has been validly adopted in consonance with the accepted customs.G 7. On the other hand, learned counsel appearing on behalf of the respondents has contended that- a. The appellant has not pleaded any custom in Jain community which allows adoption of married men. H RATANLAL@BABULAL CHUNILAL SAMSUKA v. SUNDARABAI 35 GOVARDHANDAS SAMSUKA(D)TH. LRS. [N. V. RAMANA,J.] b. That the adoption should be accepted only when it is established A with cogent and consistent proof, as it has the potential to alter the succession. c. The appellant retained his earlier name and acquired properties subsequently in his earlier name itself. B 8. In the light of the submissions advanced before us, we are called upon to answer two short questions concerning the alleged adoption of the appellant herein by late Govardhandas in the year 1973. Hence the following issues arise for consideration before this Court-!. Whether the person who alleges the existence of a custom need not prove the same because it is judicially accepted? c 2. Whether the appellant cottld plead and prove the factum of adoption?

9. In response to the issue number one, first and foremost, we would like to deal with tht• submission of the learned counsel for the D appellant that the custom of giving married man in adoption in Jain community is judicially accepted and hence the adoption need not be proved. It is an admitted fact that the parties concerned in this case are Jains. There is no dispute that Jains are governed by the Hindu Adoption and Maintenance Act, 1956 [hereinajier 'the Acf for brevity J and therefore certain provisions which may throw some light on the question, E have to be looked into. Section 3 of the Act deals with definitions. The term 'custom' is defined as under- 3. DEFINITIONS- In this Act unless the context otherwise requires- (a) the. expressions "custom" and "usage" signify any rule which, having been continuously and uniformly observed for F a long time, has obtained the force of law among Hindus in any local :irea, 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; G l 0. Section l 0 of the Act provides thus- 10. PERSONS WHO MAY BE ADOPTED- No person shall be capable of being taken in adoption unless the following comlitions are fulfilled, namely- H 36 SUPREME COURT REPORTS (2017) ll S.C.R.

A (iii) he <1>r she has not been married. unless there is a custom or usage applicable to the parties which permits persons who are married being taken in adoption; (iv) he qr she has not completed the age of fifteen years, unless there is, a custom or usage applicable to the parties which B permits1persons who have completed the age of fifteen years being taken in adoption. 11. From the aforesaid provisions, it is clear that a person cannot be adopted if he or she is a married person, unless there is a custom or usage, as defined! under Section 3(a), applicable to the parties which permits persons who arc married being taken in adoption.c

12. India has a strong tradition of respect for difference and diversity which is reflected under the Hindu family laws as it is applicable to diverse commul)ities living from the southern tip to no11hern mountains, from western plains to eastern hills. Diversity in ow· country brings along D various customs which defines what India is. Law is not oblivious of this fact and sometimes allows society to be governed by customs within the foundation oflaw, It is well known that a custom commands legitimacy not by an authority of law formed by the State rather from the public acceptance and aoknowlcdgmcnt. This Court in Thakur Gokal Chand '" Pravi11 K11111ari, AIR 1952 SC 231, has explained the ingredients of a E valid custom in the following manner-" A custom,, in order to be binding. must derive its force from the fact that by long usage it has obtained the force of law, but the English rule that "a custom. in order that it may be legal and binding, must have been used so long that the memory of man F runndh not tu the contrary" should not be strictly applied to Indian condition. 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".G

Black's Law Dict,omu·y defines customary law as "rnstoms that are accepied as legql re1111ire111ents or obligatory rules of conduct. practices and belief.~ that are so i-ital and intrinsic a part of a social and economic system that they are treated as !/"they are laws."' H 1 Bryan A. Ciarner, Black's Law Dictionary (JOtl1 Eds.), p. 468. RATANLAL@BABULALCHUNlLALSAMSUKAv. SUNDARABAI 37 GOVARDHANDAS SAMSUKA (DJ TH. LRS. [N. V. RAMAN A, J.] Privy Council in Tlte Collector of Madura "· Moottoo Ramali11gt1 A Satlt11patlti, 12 MIA 397 (1868), has observed that "under the Hindu System of law, clear proof of usage will outweigh the written text of law". 13.As per the settled law under Section 3(a) the Act. the following ingredients are necessary for establishing a valid custom- B a. Continuity. b. Certainty. c. Long usage. d. And reasonability. c

As customs. when pleaded arc mostly at variance with the general law, they should be strictly proved. Generally, there is a pq:sumption that law prevails and when the claim of custom is against such general presumption, then, whoever sets up the plea of existence of any custom has to discharge the onus of proving it, with all its requisites to the D satisfaction of the Court in a most clear and unambiguous manner. It should be noted that, there are many types of customs to name a few-gcneral customs, local customs and tribal customs etc. and the burden of proof for establishing a type of custom depend on the type and the extent of usage. It must be shown that the alleged custom has the E characteristics of a genuine custo,m viz., that it is accepted willfully as having force of law, and is not a mere practice more or less common. The acts required for the establishment of customary law ought to be plural, uniform and constant.

14. Custom evolves by conduct, and it is therefore a mistake to Fmeasure its validity solely by the element of express sanction accorded by courts of law. The characteristic of the great majority of customs is that they are essentially non-litigious in origin. They arise not from any conflict of rights adj ustcd, but from practices prompted by the convenience of society. A judicial decision rccogn.izing a custom may be relevant, but these arc not indispensable for its establishment. When a custom is to be G proved by judicial notice, the relevant test would be to sec if the custom has been acted upon by a court of superior or coordinate jurisdiuion in the same jurisdiction to the extent that justifies the com1, which is asked to apply it, in assuming that the persons or the class of persons concerned in that area look upon the same as binding in relation to circumstances H 38 SUPREME COURT REPORTS . [2017] 1 l S.C.R. A similar to those under consideration. In this case at hand there was no pleading or proof which could justify that the above standards were met. 15. It wpuld not be out of context to observe certain judicial decisions which throw some light on the issue raised in this case instant. In R11p Chand v. Jambu Prasad, (19 !O) !LR 32 247. Privy Council B held that-

"The cu~tom alleged in the pleading was this: "Among the Jains Adoption is no religious ceremony. and under the law or custom there is no restriction of age or marriage among them." And that appears to be the custom found by the High Court to exist. But c upon the argmncnt before their Lordships it was strenuously contended that the evidence in the present case, limited as it is to a comparatively small number of centers of Jain population, was insufficient to establish a custom so wide as this. and that no narrower custom was either alleged or proved. In their Lordships' opinion there is great weight in these criticisms.D enough to make the present case an unsatisfactory precedent if in any future instance fuller evidence regarding the alleged custom should be forthcoming". 16. In Slteok11arhlli v. Jeoraj, AIR 1921 PC 77, Privy Council observed that, among the Sitambari Jains the widow of a son less JainE can legally adqpt to him a son without any express or implied authority from her deceased husband to make an adoption, and the adopted son may at the time of his adoption be a grown-up and married man. The only ceremony to the validity of such an adoption is the giving and taking of the adopted son. F

17. It is very much evident that the appellant in this case has failed to produce any evidence to prove that such practice has attained the status of general custom prevalent among the concerned community. Custom, on which the appellant is relying, is a matter of proof and cannot be based on a priori reasoning or logical and analogical deductions, as G sought to be canvassed by the appellant herein. Hence the issue is answered against the appellant. 18. In response to issue number two, we arc concerned here with the custom of adopting married sons in the community of the appellant. The only evid~nce, the appellant has adduced, is his own testimony and H RATANLAL@BABULALCHUNlLALSAMSUKAv. SUNDARABAI 39 GOVARDHANDAS SAMSUKA(D) TH. LRS. [N. V. RAMAN A. J.] a word of a priest who had performed the ceremony. A general cnstom A which the appellant intends to prove requires greater proof than the one appellant adduced before the court. Moreover. there is no dispute with regard to the fact that the appellant did not plead in his written statement about existence of any custom as such. Parties to a suit arc always governed by their pleadings. Any amount of evidence or proof adduced B without there being proper pleading is of no consequence and will not come to the rescue of the parties.

19. At this juncture it would be necessary to observe the law laid down by this Court in numerous cases thatthe burden of proving adoption is a heavy one and if there is no documentary evidence in support of adoption, the Court should be very cautious in relying upon oral evidence. C This Court held so in Kislrori Lal v. Mst. C/wltibai, AIR 1959 SC 504, We can do no better than to quote the relevant passage from the above judgment which reads as under:- " As an adoption results in changing the course of succession, D depriving wives and daughters of their rights and transferring prope1ties to comparative strangers or more remote relations it is necessa1y that the evidence to support it should be such that it is free from all suspicion of fraud and so consistent and probable as to leave no occasion for doubting its truth. Failure to produce accounts, in circumstances such as have been proved in E the present case, would be a verv suspicious circumstance. (emphasis supplied) 20. In Ralwsa Pandiani (dead) by LRs. ttnd Ors. v. Gokula11antla Panda and others. AIR 1987 SC 962, aforesaid aspect was observed as under: F

"When the Plaintiff relies on oral evidence in support of the claim that he was adopted by the adoptive father in accordance with the Hindu rites, and it is not supported by any registered document to establish that such an adoption had really and as a matter of fact taken place, the Court has to act with a great deal of caution G and circumspection. Be it realized that setting up a spurious adoption is not less frequent than concocting a spurious will, and equally, if not more difficult to unmask. And the Court has to be extremely alert and vigilant to gnard against being ensnared by H 40 SUPREME COURT REPORTS (2017] ! 1 S.C.R. A schemers who indulge in unscrupulous practices out of their lust for property. If there are any suspicious circumstances, just as the propounder of the will is obliged to dispel the cloud of susplcio1n. the burden is on one who claims to have been adopted to dispel the same beyond reasonable doubt. In the case of an adoption which is not supported by a registeredB document ~r any other evidence of a clinching nature if there exist suspi¢ions circumstances, the same must be explained to the satisfaction of the conscience of the Court by the party contending that there was such an adoption. Such is the position as ar. adoption would divert the normal and natural course of c succession. Experience of life shows that just as there have been spurious claims about execution of a will, there have been spurious claims about adoption having taken place.

And the C urt has therefore to be aware of the risk involved the claim of ado tion if there are circumstances which arouse the. suspicion of the Court and D the conscience of the Court is not satisfied that the evidence preferred to support such an adoption is beyond reproach". (emphasis supplied)

2 l. In the light of the above precedents, it would be necessary to E observe statements of certain witnesses. Appellant, himself, got examined as a witness, whidh is marked as Ex. 121. He stated that after death of his biological father in l 972. he came to Nasik to continue his education while living with Govardhandas at his residence. As per his evidence, during the rnarriag¢ ofAsha, Govardhandas decided to adopt the appellant and the ceremony was held on 08.07.1973, one day before the marriage. F The adoption ceremony was held at the residence ofGovardhandas. As appellant and Govardhandas were from the Jain community, there was no bar in their e~mmunity either for adoption of a married son or concerning the age of the adopted son. It is stated that there is no custom in their community to reduce the adoption in writing. One Chaturbuj Maharaj was the priest who performed the said ceremony in the presence G ofhis biological mother, sisters and other relatives. His biological mother gave appellant in adoption to Govardhandas and Sundarabai i.e. the original plaintiff Govardhandas and Sundarabai performed the pooja of the said ceremony. Said ceremony was held with the destre and consent of Sundarabai an~ Govardhandas. After the appellant was given in H [email protected] 41 GOVARDHANDAS SAMSUKA(D)TH. LRS. (N. V. RAMANA,J.]

adoption to Govardhandas, appellant was instructed by the priest to sit A on the lap ofGovardhandas and Sundarabai. Atlerthe ceremony, lunch was served to all persons, who had attended the ceremony. It is to be noted that invitation cards were printed but the same were sent separately and not with the marriage invitation card. In the cross examination he states that even though the marriage was held on 09.07.1973, certain Bmarriage ceremonies were held as per community traditions on 08.07 .1973. That he was aged thirty-two when he was allegedly adopted and he does not know of any examples of adoption ofa thirty-two-year-old man. He admits that he did not submit any document to show that he was using his adoptive father's name after 1973. He further states that he had filed an application before the municipal council for succession c rights, but the same was not produced in the suit. Moreover, he states that he was filing income tax returns in his earlier name 'Ratanlal Chunilal'.

22. One Chaturbuj Laxminarayan Sharma was examined as witness no. 2 on behalf of the appellant. His deposition was marked as D Ex. No. 152. He stated that he knew Govardhandas for 30 years. He used to perform ceremonies for his family including the adoption ceremony of the appellant which had taken place at the residence of Govardhandas. He deposed that the ceremony was attended by a gathering of 100 to 200 people. According to him he had performed ENavgrah pooja, Kuldcvi pooja, Laxmi-narayan pooja, havan and sank.alp as part of adoption. Thereafter, name of the appellant was changed from Ratanlal Chunilal to Ratanlal Govardhandas. At the time of the ceremony, mother of the appellant gave hand of the appellant in the hands of Govardhandas. Photographs were taken at the time of the ceremony. In the cross examination he stated that invitation card for the F ceremony was published and distributed. He was unable to tell who decided to perform adoption ceremony by giving hand of the appellant. He admits that in Jain community, person to be adopted has to be seated on the lap of the adopting father. But he stated that Ratanlal was not asked to take a scat on the lap of Govardhandas as he was weak and Gdefendant No. I (Ratanlal) was healthier; this is a glaring contradiction between the evidence of appellant and the priest. One Harakchand Bharsali of Kapoorgaon was adopted after he was married. He was not able to give particulars of such adoption. Further he states that he does not know of any other example of adoption of a married person. H

42 SUPREME COURT REPORTS (2017 J 11 S.C.R. A 23. Gi1jappa Gangaram Kothul•,, who was examined as defense witness No. 3, stated that he knew Govardhandas for many years. He recollected that many years ago Govardhandas had discussed the matter ofadoptrng the appellant with him. He was present during the ceremony. He could not recollect whether invitation cards were printed for the adoption ceremony. According to his statement, the adoption ceremonyB was performed ~t the residence of the Govardhandas wherein 200 to 300 persons attended that function. He further stated that no religious ceremony rclati1~g to the marriage had taken place prior to the day of marriage. It is to be noted that Mohan la! and Aj ith have deposed on the same lines in favour of the appellant.

c 24. The evidence as discussed above makes it dear that there are lot of contrndictions in the evidence of witnesses on all material aspects of adoption. A thorough glance at the entire evidence makes it dear that the appellant who asserts the fact that he is adopted by late Govardhandas foiled to pkad and prove the factum of adoption. All the D circumstances pleaded by the appellant arc not properly cxpbincd by adducing cogent evidence to the satisfaction of the Coui1. The trial court placed burdc•1 0J1 the plaintiff to prove the adoption which is contrary to law. The appellant failed to satisfy the Cou11 that any 4ucstion of law much less substantial questions oflaw arise in this appeal which warrant interference of tllis Court. E 25. Having regard to the evidence available on record and the circumstances elucidated herein above. the view tal:en by the High Cou11. being convincingly rcasonabk. we sec no reason to interfere with the judgment of the High Coui1. Accordingly. this appeal is dismissed. There shall be no ardQrs as to costs. F Appeal dismissed.