LAXMIBAI (DEAD) THR. LRS. & ANR.versusBHAGWANTBUVA (DEAD) THR. LRS. & ORS.

                       [2013) 1 S.C.R. 632


A             LAXMIBAI (DEAD) THR. LRS. & ANR.
                                 v.
          BHAGWANTBUVA (DEAD) THR. LRS. & ORS.
               (Civil Appeal No. 2058 of 2003)
                       JANUARY 29, 2013
B
      {DR. B.S. CHAUHAN AND V. GOPALA GOWDA, JJ.]

        Hindu Adoptions and Maintenance Act, 1956:

c      s.16 read with ss.10 and 11 - Adoption of male child by
  a female - Adoption deed got registered - Presumption of a
  valid adoption - Held: If there is a registered adoption deed,
  there is a presumption uls 16 to the effect that the adoption
  has been made in compliance with the provisions of the Act
D until and unless such presumption is disproved - Burden to
  rebut the presumption lies on the person who challenges such
  adoption - In the instant case, defendants/respondents never
  made any attempt whatsoever, to rebut the presumption.

       ss. 10 and 11 read withs. 16 - Adoption - Held: In the
E instant case, there is ample evidence on record to prove
  occurrence of giving and taking ceremony - Adoptive mother
  put her thumb impression on the deed, and it was also signed
  by natural parents of child - The deed was signed by
  witnesses - Appellate courts could not have drawn any
F 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 - It is, therefore, held that the
  document was valid.
G
       Custom - Defendant pleading a special family custom
  that a child from outside the family could not have been ·
  adopted - Held: He who relies upon custom varying general
  law, must plead and prove it - Special customs which prevail
H                              632
                                                             ---·-·




   LAXMIBAI (DEAD) THR. LRS. v. BHAGWANTBUVA 633
                (DEAD) THR. LRS.
in a family, a particular community etc., require strict proof A
and the defendants/respondents have faiied to prove the
same - Evidence Act, 1872 - s.57 - Judicial notice.

     Code of Civil Procedure, 1908:.

        0. 18, r. 16. - Power to examine witness immediately - B
  Held: Mere apprehension of death of a witness cannot be a
  sufficient cause for immediate examination of a witness -
  More so, it is the discretion of court to come to a conclusion
  as to whether there is a sufficient cause or not to examine the
. witness immediately - In the instant case, plaintiff was just C
  above 70 years of age and hale and hearty and, as such,
  there was no occasion for her to file an application under 0.
  18, r. 16 CPC for recording statement prior to commencement
  of trial.
                                                                 D
     Evidence Act, 1872:

     s.134 read with ss.138 and 146 - Number of witnesses
and cross-examination - It is not the number of witnesses but
quality of their evidence which is important - If a party wishes
to raise any doubt as regards correctness of statement of a E
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 - Without this, it is not possible
to impeach his credibility.
                                                                  F
     The appellant's husband, being the descendant of
Shri Sant Eknath Maharaj, was vested with exclusive right
to carry the Palki and Padukas of Sant Maharaj from
Paithan to Pandharpur, at -the time of Ashadi Akadashi;
and after her husband's death, the appellant was vested G
with the said right. (The brother of appellant's husband
had predeceased him.) On 11.5.1971 the appellant
adopted 'R', the son of 'VBP'. On the same day the
adoption deed was executed and registered. The
appellant and her sister-in-law (the wife of the deceased H
    634      SUPREME COURT REPORTS              [2013] 1 S.C.R.


A brother of appellant's husband) filed a suit against the
  respondents seeking a decree of perpetual injunction
  preventing them from causing any obstruction or
  interf'erence in exercise of their exclusive rights to
  carrying the Palki and Padukas. The trial court decreed
B the suit, inter a/ia, holding that the adoption was valid. The
  appellant died during the trial and the adopted child
  inherited all her property. However, the first appellate
  court held that the respondents had proved that there
  existed a custom which prohibited the taking of a male
C child in adoption from outside. The adoption deed was
  also held to be suspicious. The second appeal of the
  appellants, having been dismissed by the High Court, led
  them to file an appeal.

          Allowing the appeal, the Court
D
       HELD: 1.1. 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
E personal law, but it does not override statutory law, unless
  the custom is expressly saved by it. He who relies upon
  custom varying general law, must plead and prove it. A
  custom must be established by clear and unambiguous
  evidence, unless it has been judicially recognised by the
F courts and proof of it becomes unnecessary u/s 57(1) of
  the Evidence Act, 1872. [para 7 and 9] [646-A-B, F]
          Dr. Surajmani Stella Kujur v. Durga Charan Hansdah
  2001 (1) SCR 1028 =AIR 2001 SC 938; Sa/ekh Chand
  (Dead) thr. Lrs. v. Satya Gupta & Ors. 2008 (3) SCR 833 =
G (2008) 13 SCC 119; Bhimashya & Ors. v. Smt. Janabi @
  Janawwa, 2006 (10) Suppl. SCR 628 = (2006) 13 SCC 627;
  Ram Kanya Bai & Anr. v. Jagdish & Ors. 2011 (7) SCR 817
  = AIR 2011 SC 3258; Effuah Amissah v. Effuah Krabah, AIR
  1936 P.C. 147; T. Saraswati Ammal v. Jagadambal & Anr.
H 1953 SCR 939 = AIR 1953 SC 201; Ujagar Singh v. Mst. Jeo,
 LAXMIBAI (DEAD) THR. LRS. v. BHAGWANTBUVA 635
              (DEAD) THR. LRS.
1959 Suppl. SCR 781 =AIR 1959 SC 1041; and Siromani A
v. Hemkumar & Ors., 1968 SCR 639 =AIR 1968 SC 1299 -
referred to

 . Rama/akshmi Ammal v.            Sivanatha      Perumal
Sethuraya, 14 Moo. Ind. App. 570, referred to                8
     1.2. In the instant 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, this itself would not be sufficient to establish
the existence of a custom in this regard. There is nothing C
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. Special
customs; which p·re.vail in a family, a particular
community etc., require strict proof. The respondents/ D
defendants could not establish that a male child from
outside the family could not be adopted. The appellate
courts have failed to appreciate that a negative fact
cannot be proved by adducing positive evidence. [para
15] [649-F-G; 650-B-D]                                        E
   Gherula/ Parakh v. Mahadeodas Maiya, 1959 Suppl.
SCR 406 = AIR 1959 SC 781; and V. T.S. Chandrashekhara
Mudaliar (Dead thr. Lrs.) & Ors. v. Kulandaive/u Mudaliar,
1963 SCR 440 =AIR 1963 SC 185- referred to
                                                             F
     2.1. In ~he event that there is a registered adoption
deed, there is a presumption of validity with respect to the·
said adoption. Therefore, there is a presumption u/s 16
of the Hindu Adoptions and Maintenance Act, 1956 (the
Act) to the effect that the adoption has been made in G
compliance with the provisions of the Act 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 H
    636     SUPREME COURT REPORTS                (2013] 1 S.C.R.

A   case, the defendants/respondents never made any
    attempt whatsoever, to rebut the presumption u/s 16 of
    the Act. [para 15] [650-F-H; 651-A-8]

         2.2. Undoubtedly, the court while construing a
    document, is under an obligation to examine the true
8
    purport of the document and draw an inference with
    respect to the actual intention of the parties. In the instant
    case, the adoption deed was registered on 11.5.1971, and
    the same provided complete details of the adoption.
    Registration of the adoption deed was done on the same
C   day, immediately after its execution, before the 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. There is ample
D   evidence on record to prove the occurrence of the giving
    and taking ceremony, including photographs of the 'Datta
    Homam' ceremony taken by PW-2 on 11.5.1971. The
    appellate courts could not have drawn any adverse
    inference against the appellants/plaintiffs on the basis of
E   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. The correctness or
    authenticity of the adoption deed is not disputed. In such
    a fact-situation, by gathering the intention of the parties
F   and by reading the document as a whole and considering
    its purport, it can be concluded that the adoption stood
    the test of law. This Court, therefore, holds that the
    document was valid, and that the same could not have
    been discarded by the appellate courts. [para 16,25,28, 32
G   and 40] [655-8; 656-E-F; 659-E-F; 664-8-C]
         Delta International Limited v. Shyam Sundar Ganeriwal/a
    & Anr 1999 (2) SCR 541 = AIR 1999 SC 2607; Vodafone
    International Holdings B. V v. Union of India & Anr. 2012 (1)
     SCR 573 = (2012) 6 SCC 613; S. T. Krishnappa v.
H
      LAXMIBAI (DEAD) THR. LRS. v. BHAGWANTBUVA 637
                   (DEAD) THR. LRS.
     Shivakumar& Ors., 2007 (5) SCR 8$0=(2007)10 SCC 761;            A
     Debi Prasad (dead) by L.Rs. v. Smt. Tribeni Devi, AIR 1970
     SC 1286,; Mst. Deu & Ors. v. Laxmi Narayan & Ors., 1971
     (1) SCR 101 = (1998) 8 SCC 701; Kumar Harish Chandra
    ·Singh Deo & Anr. v. Bansidhar Mohanty & Ors., 1966 SCR
     153 = AIR 1965 SC 1738; At/uri Brahmanandam (D), Thr.           B
     LRs. v. Anne Sai Bapuji, 2010 (14) SCR 339 = AIR 2011 SC
     545; Smt. Rajbir Kaur & Anr. v. Mis. S. Chokosiri & Co., 1988
     (2) Suppl. SCR 310 = AIR 1988 SC 1845, Sarju Pershad
     Ramdeo Sahu- v. Jwaleshwari Pratap Narayan Singh & Ors.
     1950 SCR 781 =AIR 1951 SC 120 ·referred to                      c
         2.4. Mere apprehension of the death of' a witness
    cannot be a sufficient cause for immediate examination
    of a witness. More so, it is the discretion of the court to
    come to a conclusion as to whether there exists a
    sufficient cause or not, to examine the witness D
    immediately. The appellant was just over 70 years of age
    and was hale and hearty. Thus, there was no occasion
    for her to file an application under 0. 18, r. 16 CPC which
    provides for the taking of evidence De Bene Esse .. for
    recording a statement prior to the commencement of the E
    trial. Though the plaintiff had died before the trial
    commenced, the other witnesses who entered the
    witness box proved the adoption ceremony and adoption
    deed. It Is not the number of witnesses but their quality
    which Is Important. The test Is whether the evidence has F
    a ring of truth, Is cogent, credible and trustworthy or
    otherwise. It Is quality and not quantity, which determines
    the adequacy of evidence as has been provided by s.134
    of the Evidence Act. [para 28-30 and 32) [658-B-D; 657-
    D·f·H]                                                      G
·       Vadive/u Thevar v. State of Madras 1957 SCR 981 =
    AIR 1957 SC 614; Jagdish Prasad v. State of M.P. AIR 1994
    SC 1251; Sunil Kumar v. State Govt. of NCT of Delhi AIR
    2003 (4) Suppl. SCR 767 = 2004 SC 552; Namdeo v. State           H
   638     SUPREME COURT REPORTS               [2013] 1 S.C.R.

A of Maharashtra AIR 2007 SC (Supp) 100; Kunju @
  Balachandran v. State of Tamil Nadu, 2008 (1)
  SCR 781 =AIR 2008 SC 1381; Bipin Kumar Monda/ v. State
  of West Bengal 2010 (8) SCR 1036 =AIR 2010 SC 3638;
  Mahesh & Anr. v. State of Madhya Pradesh 2011 (11 ).
B SCR377 = (2011) 9 SCC 626; Kishan Chand v. State of
  Haryana JT 2013( 1) SC 222 - referred to

       2.5. Furthermore, if a party wishes to raise any doubt
  as regards the correctness of the statement of a witness,
C 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. [ss.138 and 146 of the Evidence Act, 1872.]
  [para 31] [658-G-H]
D
       Khem Chand v. State of Himachal Pradesh, AIR 1994
  SC 226; State of U.P. v. Nahar Singh (dead) & Ors., 1998
  (1) SCR 948 =AIR 1998 SC 1328; Rajinder Pershad (Dead)
  by L.Rs. v. Darshana Devi (Smt.), 2001 (1) Suppl.
E SCR 442 = AIR 2001 SC 3207; and Sunil Kumar & Anr. v.
  State of Rajasthan, 2005 (1) SCR 612 =AIR 2005 SC 1096
  - referred to

        2.6. The cause of justice would be served, instead of
  being thwarted, where there has been substantial
F compliance with the legal requirements, specified in s.16
  of the Act. 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 the administration
G 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. The appellate court has erred by
  considering irrelevant material, while the most relevant
H evidence, i.e., the adoption ceremony and the adoption
   LAXMIBAI (DEAD) THR. LRS. v. BHAGWANTBUVA 639
                (DEAD) THR. LRS.
  deed, have been disregarded on the basis of mere A
, surmises and conjectures. The judgments of the
  appellate courts are set aside and judgment of the trial
  court is restored. [para 40] [664-A-B-C-F]

     Jagdish    Singh    v.  Madhuri Devi, 2008 (6)
                                                           8
 SCR 1176 =AIR 2008 SC 2296; Dharamvir v. Amar Singh,
 1996 (2) SCR 156 =AIR 1996 SC 2314; Santosh Hazari v.
 Purushottam Tiwai (Dead) by Lrs. 2001 (1) SCR 948 = AIR
 2001 SC 965; G. Amalorpavam & Ors. v. R. C. Diocese of
 Madurai & Ors. 2006 (2) SCR 899 = (2006) 3 SCC 224; C
 Santosh Hazari v. Purushottam Tiwari, 2001 (1)
 SCR 948 = (2001) 3 SCC 179; Union of India & Anr. v.
 Ranchod & Ors., 2007 (12 ) SCR 873 = AIR 2008 SC 938;
 Ashish Batham v. State of Madhya Pradesh, 2002 (2) Suppl.
  SCR 146 = AIR 2002 SC 3206; and Rathinam alias
 Rathinam v. State of Tamil Nadu & Anr. 201 O (11) SCR 871 D
 = (2011) 11 sec 140 - referred to.
                     Case Law Reference
     2001 (1) SCR 1028          refe.rred to    para 8
                                                          E
     2008 (3) SCR 833           referred to     para 8
     AIR 1936 P.C. 147          referred to     para 9
     1953 SCR 939               referred to     ·para 9
                                                          F
     1959 Suppl. SCR 781        referred to     para 9
     1968 SCR 639               referred to     para 9
     14 Moo. Ind. App. 570      referred to     para 10
     2006 (10) Suppl. SCR 628 referred to       para 12   G
     2011 (7) SCR 817           referred to ·   para 12
     1959 Suppl. SCR 406        referred to     para 13
     1963 SCR 440               referred to     para 13   H
    640      SUPREME COURT REPORTS               [2013] 1 S.C.R.

A         1966 SCR 153             referred to        para 17
          1999 (2) SCR 541         referred to        para 19
          2012 (1) SCR 573         referred to        para 20
          2007 (5) SCR890          referred to        para 21
B
          1971 (1) SCR 101         referred to        para 22
          2010 (14) SCR 339        referred to        para 24
          1957 SCR 981             referred to        para 30
c         1994 AIR 1251            referred to        para 30
          2003 (4) Suppl. SCR 767 referred to         para 30
          AIR 2007 SC (Supp) 100   referred to        para 30
D         2008 (1) SCR 781         referred to        para 30
          2010 (8) SCR 1036        referred to        para 30
          2011 (11) SCR 377        referred to        para 30

E         JT 2013( 1) SC 222       referred to        para 30
          1994 AIR 226             referred to        para 31
          1998 (1) SCR 948         referred to        para 31
          2001 (1) Suppl. SCR442 referred to          para 31
F
          ~005 (1)   SCR 612       referred to        para 31
          1988 (2) Suppl. SCR 310 referred to         para 34
          1950 SCR 781             referred to        para 34
G         2008 (6 ) SCR 1176       referred to        para 35
          1996 (2) SC~ 156         referred to        para 35
          2001 (1) SCR 948         referred to        para 35
H         2006 (2 ) SCR 899        referred to        para 35
 LAXMIBAI (DEAD) THR. LRS. v. BHAGWANTBUVA 641
              (DEAD) THR. LRS.
       2001 (1) SCR 948            referred to        para 36      A
       2007 (12) SCR 873           referred to        para 36
       2002 (2) Suppl. SCR 146 referred to            para 39
       2010 (11) SCR 871           referred to        para 39      B
    CIVIL APPELLATE JURISDICTION : Civil Appeal No.
2058 of 2003.

     From the Judgment & Order dated 09.02.2001 of the High
Court of Bombay at Aurangabad in Second Appeal No. 906 C
of 1980.

   Aarohi Bhalla, Subodh S. Patil, Sujata Kurdukar for the
Appellant.
    Aniruddha P. Mayee, Devan sh A. Mohta, Shishir D
Deshpande, Amit Yadav, Kaushal Naryan Mishra, Yash Pal
Dhingra for the Respondent.
       The Judgment of the Court was delivered by .
                                                                   E
     DR. 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 F
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:                                                               G
     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, H
    642      SUPREME COURT REPORTS                  [2013] 1 S.C.R.


A   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
8
    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.
c
         C. On 10.5.1971, some of the respondents herein, filed
    Civil Suit No. 4 7 of 1971 against Shri Vasant Bhagwant
    Pandav, Smt. Laxmibai and Smt. Gopikabai, restraining them
    from effectuating the adoption of Raghunath. The
D   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
E   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
F   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.
G   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.

H
  LAXMIBAI (DEAD) THR. LRS. v. BHAGWANTBUVA 643
     (DEAD) THR. LRS. [DR B.S. CHAUHAN, J.]
      D. The suit was contested by the respondents and a large A
 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 performanc~ of all other religious B
 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 yvas held to be valid, as it was held that there was    c
 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 D
· 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 E
  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
     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.
                                                                     G
      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     H
   644      SUPREME COURT REPORTS                 [2013] 1 S.C.R.

A committed an -error in doubting the validity of the registered
  adopti<>n deed. The burden of rebutting the aforementioned
  presumption which was on the respondents, was not
  discharged effectively, as they examined only two witnesses,
  Narharibuva (DW.1) and Somnath (DW.2), and neither of them
B 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
c 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
0 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 occurance of only four
  instances, over a period of almost four centuries, is not
  sufficient to establish the existence of a custom. The non-
E 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
F 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
G 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.
H
  LAXMIBAI (DEAD) THR. LRS. v. BHAGWANTBUVA 645
     (DEAD) THR. LRS. [DR. B.S. CHAUHAN, J.]
     4. Per contra, Shri Aniruddha P. Mayee and Shri Devansh         A
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         B
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        c
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.
                                                                     D
     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 E
     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
                                                                     F
           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       G
general law. A custom varying general law may be a general,
local, tribal or family custom. A general custom includes 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.
                                                                     H
    646      SUPREME COURT REPORTS                   [2013) 1 S.C.R.


A        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.
B
         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
C   must be established by clear and unambiguous evidence.

          8. In Dr. Surajmani Stella Kujur v. Durga Charan
    Hansdah 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
D   by way of clear and unambiguous evidence. (Vide: Salekh
    Chand (Dead) thr. Lrs. v. Satya Gupta & Ors. (2008) 13 SCC
    119).

        9. A custom must be proved to be ancient, certain and
E 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
F 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
G the Courts take judicial notice of it. (See also: Effuah Amissah
  v. Effuah Krabah, AIR 1936 P.C. 147; T Saraswati Ammal v.
  Jagadamba/ & Anr., AIR 1953 SC 201; Ujagar Singh v. Mst.
  Jeo, AIR 1959 SC 1041; and Siromani v. Hemkumar & Ors.,
  AIR 1968 SC 1299).
H
 LAXMIBAI (DEAD) THR. LRS. v. BHAGWANTBUVA                  647
    (DEAD) THR. LRS. [DR. B.S. CHAUHAN, J.]

    10. In Ramalakshmi Ammal v. Sivanatha Perumal A
Sethuraya, 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               B
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:
                                                                    c
     "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.            D

    All that is necessary to prove is that the usage has
    been acted upon in practice for such a Jong period and
    with such invariability as to show that it has, by
    common consent, been submitted to as the E
    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."
                                                                    F
    12. In Bhimashya & Ors. v. Smt. Janabi @ Janawwa,
(2006) 13 SCC 627, this Court held:

           "A custom is a particular rule which has existed
    either actually or presumptively from time immemorial, G
    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
                                                                    H
    648        SUPREME COURT REPORTS                  [2013] 1 S.C.R.

A         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
B         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
c         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
D         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 & Anr. v. Jagdish & Ors. AIR
E 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
F   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
G a son'. (Vide: Gherulal Parakh v. Mahadeodas Maiya, AIR 1959
  SC 781 ; and V. T. S. Chandrashekhara Mudaliar (Dead thr.
  Lrs.) & Ors. v. Kulandaivelu Mudaliar, AIR 1963 SC 185).

       14. So far as the present case is concerned, the trial court,
H after appreciating the evidence on record regarding custom,
 LAXMIBAI {DEAD} THR. LRS. v. BHAGWANTBUVA                  649
    {DEAD} THR. LRS. [DR. B.S. CHAUHAN, J.]
came to the conclusion that the evidence led by the                 A
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       B
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        c
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/
                                                                    0
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 that there was, in fact,
a special custom that existed, which required the taking of a       E
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           F
each time, a male child was taken from within the same family,
the same may merely have been done as a matter of
convenience, a.nd 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        G
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        H
    650      SUPREME COURT REPORTS                   [2013) 1 S.C.R.


A   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
B   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
c   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
0
    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/
E   respondents have failed to prove the sam~.

         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,
F   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:

G      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
H been made in compliance with the provisions of the Act, 1956
  LAXMIBAI (DEAD) THR. LRS. v. BHAGWANTBUVA                  651
     (DEAD) THR. LRS. [DR. B.S. CHAUHAN, J.]
until and unless such presumption is disproved. In the event         A
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         B
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       c
have failed to discharge the burden of rebuttal placed upon
them, with respect to the presumption of validity of adoption
under Section 16 o·i the Act 1956.

      16. Undoubtedly, the court while construing a document,
 is under an obligation to examine the true purport of the           D
document and draw an inference with respect to the actual
 intention of the parties. The adoption deed was registered ori
 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       E
was related to Smt. Laxmibai. Her husband had expired in 1951
and it had been his desire to adopt a son in ordeJ 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              F
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      G
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         H
    652      SUPREME COURT REPORTS                  [2013] 1 S.C.R.

A 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
B 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
C 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 & Anr.
  v. Bansidhar Mohanty & Ors., AIR 1965 SC 1738).

          18. A document must be construed, taking into
D 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.

     19. In Delta International Limited v. Shyam Sundar
E Ganeriwalla & Anr., 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
F 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.
G
         20. In Vodafone International Holdings B. V v. Union of
    India & Anr., (2012) 6 SCC 613, while dealing with a similar
    situation, this Court held:
          "The Court must look at a document or a transaction in
H
   LAXMIBAI (DEAD) THR. LRS. v. BHAGWANTBUVA 653
      (DEAD) THR. LRS. [DR. B.S. CHAUHAN, J.]
      a context to which it properly belongs to. While obliging A
      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, isolatedfrom
      any context to which it properly belongs.
                                                                  B
              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 transaction
      intended as a whole, there is nothing in the doctrine to
      prevent it being so regarded; to do so in not to prefer C
      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." D
      (emphasis added)
      21. In S. T. Krishnappa v. Shivakumar & Ors., (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          E
 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,       F
 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.                                   G
      Furthermore, In Mst. Deu & Ors. v. Laxmi Narayan & Ors.,
. (1998) 8 sec 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         H
    654       SUPREME COURT REPORTS                 [2013] 1 S.C.R.


A 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
B 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/
C 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.
D But it is not a case where there were no witnesses except the
  executants. Instead of two witnesses, seven attesting witnesses
  put their signatures.
          24. In Atluri Brahmanandam (D), Thr. LRs. v. Anne Sai
E Bapuji, 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
F         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.
G
          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 ad~ptive father. Since the aforesaid
H         custom and aforesaid adoption was also recorded in a
         LAXMIBAI (DEAD) THR. LRS. v. BHAGWANTBUVA                      655
            (DEAD) THR. LRS. [DR. B.S. CHAUHAN, J.]
             registered deed of adoption, the Court has to presume that        A
             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 afore~a1d .adoption." (emphasis added)
                                                                               B
              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 acfoptive child had acted as witnesses, and not as
        executors of the document. Undoubtedly, adoption disturbs the
        natural-lineDf!?~ccession, owing to which, a very heavy burden         C
        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                D
        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 E
       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 F
       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 G
       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 H



'   '
    656     SUPREME COURT REPORTS                   [2013) 1 S.C.R.

A 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.
B
       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
C 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
D 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
E 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
F 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
G only with reference to the fact that the witnesses that were
  examined in court, were all beneficiaries of the 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
H
 . LAXMIBAI (DEAD) THR. LRS. v. BHAGWANTBUVA 657
      (DEAD) THR. LRS. [DR. B.S. CHAUHAN, J.]
 a medical man by profession, and was also involved in public A
 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, B
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 · c
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.                                    D
      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 CPC
which provides for taking evidence De Bene Esse for recording        E
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.         F
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             G
an application, the trial court could not have allowed it after
considering the aforesaid facts.
    29. 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.             H
   658      SUPREME COURT REPORTS                  [2013) 1 S.C.R.


A 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.
B
        30. 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
C 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
D 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; AIR 1957
E SC 614; Jagdish Prasad v. State of M.P. AIR 1994 SC 1251;
   Sunil Kumar v. State Govt. of NCT of Delhi AIR 2004 SC 552;
   Namdeo v. State of Maharashtra AIR 2007 SC (Supp) 100;
   Kunju@ Balachandran v. State of Tamil Nadu, AIR 2008 SC
   1381; Bipin Kumar Monda/ v. State of West Bengal AIR 201 O
F SC 3638; Mahesh & Anr. v. State of Madhya Pradesh (2011)
   9 SCC 626; Kishan Chand v. State of Haryana JT 2013 (1)
   SC 222).
       31. Furthermore, there cannot be any dispute with respect
G 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.
H Without this, it is not possible to impeach his credibility. Such
  LAXMIBAI (DEAD) THR. LRS. v. BHAGWANTBUVA                     659
     (DEAD) THR. LRS. [DR. B.S. CHAUHAN, J.]
  a law has been advanced in view of the statutory provisions           A
  enshrined in Section 138 of the Evidence Act, 1872, which
  enable the opposite party to cross-examine a witness as
  regards information tend~red in evidence by him during his
  initial examination in chief, and-th_e scope of this provision
  stands enlarged by Section 146 of the Evidence Act, which             B
  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          c
  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        D
  same is essential to ensure fair play and fairness in dealing
  with witnesses. (See: Khem Chand v. State of Himachal
  Pradesh, AIR 1994 SC 226; State of U.P. v. Nahar Singh
  (dead) & Ors., AIR 1998 SC 1328; Rajinder Pershad (Dead)
  by L.Rs. v. Darshana Devi (Smt.), AIR 2001 SC 3207; and
  Suni/ Kumar & Anr. v. State of Rajasthan, AIR 2005 SC 1096).          E
      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             F
 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            G
 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            H
    660     SUPREME COURT REPORTS                   [2013] 1 S.C.R.

A 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
s 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
c 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
0
  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
E also required to be enlarged. It was in this backdrop that his
  version was found to be correct, and that the same came to
  support the case of the validity of the adoption.

        33. The First Appellate Court dealt with the same issue
F 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
G 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
H photographs produced in court, did not contain a stamp and
  LAXMIBAI (DEAD) THR. LRS. v. BHAGWANTBUVA 661
     (DEAD) THR. LRS. [DR. B.S. CHAUHAN, J.]
date on their rear side, to show for holding that they were A
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 B
him, stating thathe 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. ~ajbir Kaur & Anr. v. Mis. S. Chokosiri & Co., C
AIR 1988 SC 1845, this Court held that the trial Court is the
best judge of evidence. Furthermore, in Sarju Pershad Ramdeo
Sahu v. Jwa/eshwari Pratap Narayan Singh & Ors., AIR 1951
SC 120, this Court helC,that when there is conflict of oral
evidence of the parties on any matter in issue and the decision D
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 E
interfere with the finding of the trial Judge on a question of fact.

     35. In Jagdish Singh v. Madhuri Devi, AIR 2008 SC 2296,
this Court held:

    "When there is a conflict of oral evidence on any matter F
    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 G
    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 H
    662       SUPREME COURT REPORTS                   [2013] 1 S.C.R.


A         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
8         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, AIR 1996 SC 2314;
  Santosh Hazari v. Purushottam Tiwai (Dead) by Lrs., AIR
  2001 SC 965; and G. Amalorpavam & Ors. v. R. C. Diocese
C of Madurai & Ors. (2006) 3 SCC 224)

        36. Similarly, in Santosh Hazari v. Purushottam Tiwari,
    (2001) 3 SCC 179, this Court observed :

D         "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.
E
          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
F         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
G         conjectures and surmises, the appellate Court is entitled
          to interfere with the finding of fact. "

        (See also: Union of India & Anr. v. Ranchod & Ors., AIR
    2008 SC 938)
H
           LAXMIBAI (DEAD) THR. LRS. v. BHAGWANTBUVA 663
              (DEAD) THR. LRS. [DR. B.S. CHAUHAN, J.]
            37. There is no prohibition in law for the appellate court to A
       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 B
       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 evidencec
       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 :-
                                                                          D
             "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           E
             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- F
       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 G
       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 H



. .·   ~
    664     SUPREME COURT REPORTS                  (2013] 1 S.C.R.


A   and conjectures. (Vide: Ashish Batham v. State of Madhya
    Pradesh, AIR 2002 SC 3206; and Rathinam alias Rathinam
    v. State of Tamil Nadu & Anr., (2011) 11 SCC 140)

          40. The appellate court has erred by considering the
    irrelevant material, while the most relevant evidence, i.e., the
8
    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
C   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
D   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
E   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.

F       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.

    R.P.                                           Appeal allowed.