Ramchandra Vasudeo alias Ramchandra Pillay vs Baburao Appaswami Pillay and others

G.N. Vaidya, J.—The only point which arises in the above Second Appeal is whether the two Courts below having held that the factum of adoption of the appellant-plaintiff was proved, the learned Joint Judge, Poona, was right in law in holding that the adoption was invalid and in setting aside the decree passed by the learned trial Judge, declaring that the plaintiff was the owner of the suit house as the adopted son and the heir of Manikbai; and perpetually restraining respondent-defendant No. 1 from interfering with plaintiff''s title to and enjoyment of the declared right of the suit house; and further directing that he shall not collect rent from defendants Nos. 2 to 7 or make any claims on this count against them; and that defendants Nos. 2 to 7 shall not pay the rent or any other charges vis-a-vis the suit house to any person except the plaintiff.

The findings of the two Courts below that the factum of adoption was proved is based on a careful appreciation of the oral and documentary evidence on the record including a certificate issued by the Pillai Samaj to which the plaintiff belonged stating that the plaintiff was adopted by Smt. Manikbai Ramchandra Pillay sometime in 1958 and the minutes of the meeting held on April 14, 1963 of that Samaj, which are at Exhs. 66 and 67.

In Exh. 67. which is the minutes of the meeting held on April 14, 1963, confirmed on June 16, 1963, it is stated that the letter received from R. V. Pillay, was read out by Prof. R. N. Pillay and explained in Hindi to all. The point of issuing certificate as asked for in the letter was discussed and it was found that the following six members had physically attended the function of adoption: 1. B. A. Pillay, 2. S. A. Pillay, 3. A. A. Pillay, 4. R. V. Pillay, 5. S. S. Pillay and 6. S. V. Pillay. The remaining three members i.e. Prof. R. N. Pillay, Manickam Pillay and Kashinath Pillay had also confirmed that even though they had not attended the function physically they knew that R. V. Pillay was adopted by the late Smt. Manikbai Pillay and therefore it was decided to issue a certificate to the plaintiff.

In other words the minutes of the Managing Committee show that the Samaj represented by its Executive organ accepted the adoption of the plaintiff as legal and proper and the minutes are proved by the evidence of the President, Ramchandra Narayan Pillay examined at Exh. 64 on behalf of the plaintiff as well as the Secretary, Subramaniam Annaswami Pillay examined as plaintiff''s witness at Exh. 62.

u/s 49 of the Indian Evidence Act when the Court has to form an opinion as to the usages and tenets of any body of men or family, the opinions of persons having special means of knowledge thereof are relevant. The opinions of these persons particularly of the President of the Samaj that there was a custom among the Pillay''s to have such adoption is relevant. In the cross-examination he admitted that he did not know the age of the adopted son in the past adoptions witnessed by him. The very fact that the elder members of the Samaj did not object to this adoption shows that the Samaj approved this adoption as there was nothing objectionable in the custom of the Samaj to make such adoption.

The learned Civil Judge who tried the suit has, on this aspect of the matter observed in para. 9 of the judgment as follows:

First it is said that Plaintiff was over 15 years of age when the adoption took place. Factually this is correct. Unless therefore, Plaintiff shows that custom and usage sanctioned the adoption of a major his adoption will have to be ruled as invalid. On this subject we do not have any definite evidence. True it is for Plaintiff to establish the custom in the community permitting adoption of persons above the age of 15 years. But what should not be forgotten is that Poona Pillays are small group with not much of the past clinging to them. As said before Plaintiff''s was the first case of adoption amongst the Poona Pillays. It would be ridiculous to deduce from this, that adoption is unknown or prohibited amongst the Pillays, while there may not be much of direct evidence on the subject on interesting Deductions is provided by the community''s reaction of it. Quite a number of Pillay''s including Defendant No. 1 attended the function. No one thought the adoption unusual on account of Pillay''s being over the age of 15 years The Samaj discussed the matter in 1963 and thought nothing unusual about the adoption. This shows that the community had come to adopt the easy going approach of the lower orders to the question like adoption. They looked upon it as a purely secular function and saw nothing untoward in the spectacle of a grown-up boy being adopted. This reaction of the community to the adoption reflects that there had been no thought in any one''s mind about the inability of a major to get adopted. "This mental attitude I think, sums up, the special sanction to the adoption of grown-up boys. A custom or usage are to be proved by incidents in the past. But there has to be a beginning for everything. Plaintiffs adoption was the first case of adoption amongst Poona Pillays. In such a case one has to gauge the validity of the act done from the community''s reaction to it Judging from this reaction, I think, plaintiff has proved that his being over the age of 15 years was no bar to his adoption.

The learned trial Judge did not apply his mind to the definition of ''custom'' which is contained in section 3 (a) of the Hindu Adoption and Maintenance Act which runs as follows :

the expressions "custom" and ''''usage" signify and 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;

The learned Joint Judge, therefore, applied this definition to the facts of this case and found that in the absence of proof of contention and uniform rule of adoption of a boy of any age, of a boy being more than 15 years, it could not be said that the custom was established as required by section 3 (a) of the Act. The learned District Judge, therefore, set aside the decree passed by the trial Court and dismissed the plaintiff''s suit by his judgment and decree dated February 27, 1967 notwithstanding his concurrent finding that the factum of adoption of the plaintiff by Manikbai was established.

It is undisputed that at the time of the adoption the plaintiff was about 18 years of age and unmarried and the adoption is governed by the provisions of the Hindu Adoptions and Maintenance Act which, inter alia, provided in section 10 as follows:

No person shall be capable of being taken in adoption unless the following conditions are fulfilled, namely:

(i) ...

(ii) ...

(iii) ...

(iv) he or she has not completed the age of fifteen years, unless there is a custom or usage applicable to the patties which permits persons who are married being taken in adoption;

The question which the lower Court had to consider was whether the plaintiff had established the custom or usage among members of Pillay community, to which he belonged, which permitted persons who had completed the age of 15 years being taken in adoption.

In determining whether such a rule existed, the Court must take into consideration the most ancient law giver, the public opinion of the community. If such public opinion show that a boy of 18 years could be adopted in the community and the rule regarding such adoption to be valid was continuously and uniformly observed for a long time the customary rule has the force of law within the meaning of section 3 (a) of the Act. The proof must depend to a large extent on the opinion of the community, which in the present case, was proved by production of the minutes of the Managing Committee of the Samaj. The community included a professor who ought to have known along with the other members of the committee the existence of such a custom. The Secretary and the President of the Samaj have given evidence in favour of the plaintiff saying that such an adoption is permitted in the community. As already stated above the opinion of these persons was relevant u/s 49 of the Indian Evidence Act.

The learned Joint Judge in my opinion ought to have accepted the view of the committee of the Samaj in this connection. It showed that there was among the Pillay community in Poona a custom which permitted a boy who had completed 15 years to be adopted. It is common ground that even defendant No. 1 was present at the adoption ceremony of the plaintiff which was already attended and was celebrated in accordance with religious rites. Whether a particular rule was uniformly and consistently followed is to be decided by the Court on the basis of the evidence of the opinions about such custom prevalent in the community as well as of instance of application of the rule. It is true that the plaintiff and his witnesses have not stated about any instance of a member of Pillay Samaj having adopted a boy of more than 18 years. But the learned Judge was not right in holding that merely because such an adoption was made it could not be considered as complying with the customary rule. Somebody has to be adopted in the first instance to prove an instance. It is not merely because it was done that the adoption is valid. Because the opinion of the Samaj was not against it, it must be held to be valid. In other words the evidence given by the President and the Secretary of the Samaj and the minutes and certificate issued by the Samaj, in my opinion constituted sufficient evidence to hold that among the Poona Pillays there was a custom or usage which permitted persons who had completed the age of 15 years being taken in adoption u/s 10 (iv) of the Hindu Adoptions and Maintenance Act. It also be noticed that the words "custom" and ''usage'' are defined in the Act and are referred to in section 10 (iv) of the Act. There is reference to the custom regarding the age of the adopted boy because of different customs prevailing in different parts of India. There was a great divergence among the medieval writers on this point which is reflected in the case law relating to the age of the boy to be adopted. When the Act was passed in some parts of India, like Bengal, Banaras, Bihar and Orissa, it was the rule that the adoption must be made before upanayana that is before the boy was invested with the sacred thread. Similar was the rule applied in Madras School though in that School if the person to be adopted was of the same gotra as the adopter, the adoption could be made even after upanayana provided it was made before marriage. In Bombay School, as it then existed, however, a person could be adopted at any age though he may be even older than the adopter and adoption was not invalid although it took place after the thread ceremony of the boy was performed. (See Balabai v. Mahadu I L R 48 Bom. 387).

In my view though this was the view so far as Bombay School was concerned it has to be recognised as applicable to the persons who have adopted as their home any part of Maharashtra State. Such persons will be presumed to be governed by the Bombay Customary Rule as the rule has no basis in any particular text of any Dharmashastra or Smriti. This rule so far as this Court is concerned, has been continuously and uniformly observed for a long time and has obtained the force of law amongst the Hindus in the Bombay School areas within the meaning of section 3 (a). The rule has to be taken into consideration as a rule prevailing in the local areas of Bombay School or lex loci. I think that the adoption performed in Poona by Pillays who appear to have been more or less permanently settled in Poona and who do not claim to have their home in any other place must be presumed to be governed by this local customary rule prevailing in the local areas of the Bombay School which of course included Poona area. If at all the defendant wanted to establish that the local custom did not apply to the adoption among Pillays it was for him to show that the adoption of a boy of 18 years of age was considered to be invalid by the Pillay community in the original home before migration to Poona or by some authority of Madras High Court or of some other High Court. He has failed to do so. In this view of the matter it must be held that the adoption of the plaintiff cannot be considered to be in contravention of section 10 (iv) of the Hindu Adoptions and Maintenance Act.

Dr. Kane in his History of Dharmashastra, Volume III, p. 680 has observed as follows :

The D. M. (Dattaka Mimansa) says that the best time for adoption is upto three years, then from three years to give is the next best (gauda) and that after five no boy can be adopted. The D. C. (Dattaka Chandrika) (P. 36) holds that a boy of the three higher classes can be adopted upto upanayana and that a sudra boy can be adopted till his marriage. The Nimayasindhu seems to be of the same opinion. The V. Mayukha and Samskara Kaustubha both held that even a boy not of the same gotra may be taken in adoption after upanayana or after marriage and even when the person to be adopted has himself had a son. In Bengal, Banaras and Bihar the Courts hold that the boy must be adopted before upanayana. The same rule holds good in Madras; but there it is further held that if the boy to be adopted is of the same gotra as the adopter, the adoption may be made after upanayana but before marriage. In Bombay a person may be adopted at any age, even after marriage and even after he has had children and he may be even older than the adopter.

It is therefore, clear that notwithstanding what was stated in the aforesaid Dharamashastra Books, the Bombay School of Hindu Law never recognised any age limit for adoption. That is the legal custom and lex loci relating to adoption in this part of the country within the meaning of the definition of ''custom'' under the Hindu Adoptions and Maintenance Act. A person may be, therefore adopted at any age in Maharashtra State unless it is proved that it is prohibited by the custom of the community.

It is true that u/s 4 of the Act any text, or interpretation of Hindu Law or any custom or usage as part of that law in force immediately before the commencement of the Act shall cease to have effect with respect to any matter for which provision is made in the Act. That is expressly qualified by saying: "save as otherwise expressly provided in this Act." In my opinion section 10 (iv) when it refers to the custom of adopting a boy older than 14 years being permitted among the parties to the adoption must include the custom which has been prevailing in Bombay ever since the Courts under the East India Company began to administer Hindu Law. That custom is not affected by section 4 of the Hindu Adoption and Maintenance Act and it survives so as to validate the plaintiff''s adoption.

The learned Judge, in my view, erred in ignoring these aspects of the definition of custom and in thinking that the custom in a community alone is to be considered and not the custom in the local area. The custom adopting a boy irrespective of his age is a custom which is local in Bombay School of Hindu Law as held by the Courts and that custom is not based on any particular interpretation of any text but merely on the fact that the Bombay High Court has always recognised this custom as a rule of adoption prevailing in this part of the country. I am, therefore, of the view that the adoption of the plaintiff cannot be challenged as invalid u/s 10 (iv) of the Act.

Moreover, the Court must also give effect to the consensus of the Pillay Samaj as expressed in the certificate and minutes. The community rightly or wrongly believe that there is no prohibition against the adoption of a boy of any age. The well known Maxim of Law "Communis Error Facit Jus" (Common error sometimes passes current as law) must apply in such a matter. The law so far favours the public good, that it will in some cases permit a common error to pass for right because communis opinion is often evidence of what the law is, not where it is an opinion merely speculative and theoretical, floating in the minds of persons; but where it has been made the ground-work and substratum of practice. The members of the Piilay Samaj attended the function of the adoption of the plaintiff. The Samaj later discussed the matter and issued the certificate to the plaintiff and therefore it cannot be said to be merely a speculative or theoretical opinion. It was the opinion which they thought was in accordance with the religious custom. The plaintiff''s adoption was made by Mantras and Tanjras. It further strengthens the validity of the adoption. I am, therefore, of the opinion that even applying this well known legal Maxim, plaintiff''s adoption must be held to be valid.

In view of this conclusion the decree passed by the Joint Judge, Poona, on 27th February 1967 is set aside and the decree passed by the learned Joint Civil Judge, Junior Division on 31st August 1965 is restored. The Second Appeal is allowed. The plaintiff-appellant do recover the costs from defendant No. 1 in this Court and also in the appellate Court.