MANU/SC/0072/2013

Equivalent/Neutral Citation: 2013(2)ABR877, 2013II AD (S.C .) 377, 2013(123)AIC 77, AIR2013SC 1204, 2013(2) AKR 206, 2013(2)ALD145,
2013(2)ALLMR(SC )420, 2013 (97) ALR 506, 2013 3 AWC 2544SC , 2013(2)BomC R30, 2013 (1) C C C 129 , 2013(2)C DR512(SC ), 2013(1)HLR257, 2013
INSC 64, JT2013(2)SC 362, 2013-2-LW825, 2013(1)RC R(C ivil)895, 2013(2)SC ALE106, (2013)4SC C 97, [2013]1SC R632, (2013)2WBLR(SC )818

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 2058 of 2003
Decided On: 29.01.2013
Laxmibai (Dead) thr. L.Rs. and Ors. Vs. Bhagwantbuva (Dead) thr. L.Rs. and Ors.
Hon'ble Judges/Coram:
B.S. Chauhan and V. Gopala Gowda, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Aarohi Bhalla, Subodh S. Patil and Sujata Kurdukar,
Advs.
For Respondents/Defendant: Aniruddha P. Mayee, Devansh A. Mohta, Shishir
Deshpande, Amit Yadav, Kaushal Narayan Mishra and Yash Pal Dhingra, Advs.
Case Note:
Hindu Adoptions and Maintenance Act, 1956 - Sections 10, 11 and 16--
Adoption of male child by female--Requirement of law--Adopted child was 8
years at time of adoption--And adoptive mother was 70 years--Presumption of
validity of adoption--Second appeal allowed--Judgments and decrees of first
and second appellate courts set aside--Judgment and decree of trial court
restored.
Section 10 of the Hindu Adoptions and Maintenance Act, 1956 (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, appellant 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 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 (D.W. 1) and (D.W. 2). The Court has 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

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 rebuttal placed upon them, with respect to the presumption of validity of
adoption under Section 16 of the Act 1956.
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. Accordingly, 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 Hindu
Adoptions and Maintenance 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 excuse or overlook a mere irregularity or a trivial
breach of law for doing real and substantial justice to the parties and pass
orders which will serve the interest of justice best.
Ratio Decidendi:
"Adoption deed shall be held valid if persons who challenged adoption failed
to discharge burden of rebuttal placed upon with respect to presumption of
validity of adoption under provision of law."
Case Category:
FAMILY LAW MATTER - ADOPTION AND MAINTENANCE MATTERS
JUDGMENT
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.
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.

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 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.
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 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.
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

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 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 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 occurrence 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 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 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

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 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.
8. In Dr. Surajmani Stella Kujur v. Durga Charan Hansdah MANU/SC/0099/2001
: 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. L.Rs.
v. Satya Gupta and Ors. MANU/SC/7400/2008 : (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 MANU/PR/0140/1936 : AIR 1936
P.C. 147; T. Saraswati Ammal v. Jagadambal and Anr. MANU/SC/0087/1953 :
AIR 1953 SC 201; Ujagar Singh v. Mst. Jeo MANU/SC/0187/1959 : AIR 1959 SC
1041; and Siromani v. Hemkumar and Ors. MANU/SC/0116/1968 : AIR 1968 SC
1299).
1 0 . I n Ramalakshmi Ammal v. Sivanatha Perumal Sethuraya
MANU/PR/0027/1872 : 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.

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 12. I n Bhimashya and Ors. v. Smt. Janabi @ Janawwa MANU/SC/5563/2006 :
(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 xx xx
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 and Anr. v. Jagdish and Ors. MANU/SC/0859/2011 :
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 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 MANU/SC/0024/1959 : AIR 1959 SC 781; andV.T.S.
Chandrashekhara Mudaliar (Dead thr. L.Rs.) and Ors. v. Kulandaivelu Mudaliar
MANU/SC/0248/1962 : AIR 1963 SC 185).
1 4 . 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 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

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 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 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 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 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.

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 1 6 . 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 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: Kumar Harish Chandra Singh Deo and Anr. v. Bansidhar Mohanty and
Ors. MANU/SC/0011/1965 : 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.
1 9 . I n Delta International Limited v. Shyam Sundar Ganeriwalla and Anr.
MANU/SC/0258/1999 : 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.
2 0 . I n Vodafone International Holdings B.V. v. Union of India and Anr.
MANU/SC/0051/2012 : (2012) 6 SCC 613, while dealing with a similar situation, this
Court held:
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

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 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 and Ors. MANU/SC/2209/2007 : (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 MANU/SC/0354/1970 :
AIR 1970 SC 1286, this Court held that the giving and receiving are 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 and Ors. v. Laxmi Narayan and Ors.
MANU/SC/1351/1998 : (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
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.
2 4 . I n Atluri Brahmanandam (D), Thr. L.Rs. v. Anne Sai Bapuji
MANU/SC/0957/2010 : 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

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 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)
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 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 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

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 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 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 Code of Civil
Procedure 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 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.
2 9 . 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.
3 0 . 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 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; MANU/SC/0039/1957 :
AIR 1957 SC 614; Jagdish Prasad v. State of M.P. MANU/SC/0282/1994 : AIR 1994
SC 1251; Sunil Kumar v. State Govt. of NCT of Delhi MANU/SC/0815/2003 : AIR
2004 SC 552; Namdeo v. State of Maharashtra MANU/SC/7215/2007 : AIR 2007
SC (Supp) 100; Kunju @ Balachandran v. State of Tamil Nadu
MANU/SC/7065/2008 : AIR 2008 SC 1381;Bipin Kumar Mondal v. State of West
Bengal MANU/SC/0509/2010 : AIR 2010 SC 3638;Mahesh and Anr. v. State of

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 Madhya Pradesh MANU/SC/1125/2011 : (2011) 9 SCC 626;Kishan Chand v.
State of Haryana MANU/SC/1120/2012 : JT 2013 (1) SC 222).
3 1 . Furthermore, there cannot be any dispute with respect to the settled legal
proposition, that if a party wishes to raise any doubt as 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. (See: Khem Chand v. State of Himachal
Pradesh MANU/SC/0064/1994 : AIR 1994 SC 226;State of U.P. v. Nahar Singh
(dead) and Ors. MANU/SC/0148/1998 : AIR 1998 SC 1328;Rajinder Pershad
(Dead) by L.Rs. v. Darshana Devi (Smt.) MANU/SC/0453/2001 : AIR 2001 SC
3207; and Sunil Kumar and Anr. v. State of Rajasthan MANU/SC/0053/2005 :
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 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

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 backdrop that his version was found to be correct, and that the same came to support
the case of the validity of the adoption.
3 3 . 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 negatives, even though
he had stated that he had taken a total of 15 photographs.
34. In Smt. Rajbir Kaur and Anr. v. S. Chokosiri and Co. MANU/SC/0453/1988 :
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 and Ors. MANU/SC/0002/1950 : 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 MANU/SC/7530/2008 : 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 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 MANU/SC/0589/1996 : AIR 1996 SC 2314;
Santosh Hazari v. Purushottam Tiwai (Dead) by L.Rs. MANU/SC/0091/2001 :
AIR 2001 SC 965; and G. Amalorpavam and Ors. v. R.C. Diocese of Madurai and
Ors. MANU/SC/8011/2006 : (2006) 3 SCC 224)

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 36. Similarly, in Santosh Hazari v. Purushottam Tiwari MANU/SC/0091/2001 :
(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 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 and Anr. v. Ranchod and Ors. MANU/SC/8164/2007 :
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.
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 MANU/SC/0757/2002 : AIR 2002 SC
3206; and Rathinam alias Rathinam v. State of Tamil Nadu and Anr.
MANU/SC/1978/2009 : (2011) 11 SCC 140)
40. The appellate court has erred by considering the irrelevant material, while the most

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 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 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.
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