Holding

The alleged adoption of the sister's son is invalid as no valid custom permitting such adoption was proved, and the appeal is dismissed.

Summary

The appeal concerned a suit for partition of a family property where the plaintiff claimed that the original owner, Jagannath, had adopted his sister's son, Chandra Bhan, under a custom of the Vaish community that permitted such adoptions. The respondents argued that no such custom existed and that the adoption was invalid, affecting the plaintiff's share. The Supreme Court held that the alleged adoption took place before the Hindu Adoption and Maintenance Act, 1956, so the old Hindu law applied, and that a custom allowing adoption of a sister's son must be ancient, certain, and proven by clear evidence. The evidence presented failed to establish any such custom, and the adoption was deemed invalid. Consequently, the appeal was dismissed, leaving the property rights of the plaintiffs unchanged.

Issues considered

Whether a custom existed in the Vaish community permitting adoption of a sister's son.
Whether the alleged adoption, performed before the Hindu Adoption and Maintenance Act, 1956, is governed by the old Hindu law.
Whether the custom, if it existed, satisfies the requirements of antiquity, certainty, uniformity, and reasonableness under Section 3 of the Hindu Adoption and Maintenance Act.
Whether the evidence adduced (witness testimonies, documents) is sufficient to prove the existence of such a custom.
Whether the adoption, if valid, would affect the partition and share of the suit property.

Legislation cited

Hindu Adoption and Maintenance Act, 1956s. 11, s. 3, s. 4, s. 5, s. 6

Subjects

adoptionHindu lawcustomproperty partitionvalidity of adoptionreligious efficacysuccessioncustom proof

Judgment

[2008] 3.S.C.R. 833

... '\
SALEKH CHAND (DEAD) BY LRS. A
~
v.
SATYA GUPTA AND ORS.
(Civil Appeal No. 1380 of 2002)

MARCH 4, 2008
B
(DR. ARIJIT PASAYAT AND P. SATHASIVAM, JJ.)
,,~

·\
Hindu Adoption and Maintenance Act, 1956/Hindu Law;
Article 3(1) and (2):
c
Adoption of sister's son by a Hindu- Validity of- Division
in property of original owner amongst his four sons/lineal
descendants - His one son allegedly adopted son of his sister
- Widow of adopted son allegedly sold her share in the suit
property to appellants - Trial Court held the adoption as invalid
. - Reversed by first appellate Court - High Court held that D
;
prevalent customs did not allow adoption of sister's son -
Correctness of - Held: Correct - Since adoption in question
took place prior to enactrrent of 1956 Act, Old Hindu Law
applicable -Adoption of son!Dattaka evolved around two texts
of 'Manu' and 'Vashishta' and a metaphor 'SAUNAKA' - E
Adoption of son recognized more due to secular.reasons than
religious necessity - However, foundation of adoption of son
is based on religious efficacy - It is incumbent on the claimant
'
)
" to prove the custom on which he relies for a valid adoption -
Customs from its long use obtained force of law and became F
a rule - When a custom is against the written texts of Hindu
Law, one who sets up such a custom must prove it by a clear
and unequivocal language - In the instant case, appellants-
vendee failed to establish that the adoption of sister's son by
vendor/descendant of original owner of the property in quesiton G
was in terms of customs prevalent at that time - Moreovetf
existence of such a custom was a/so not established - Hence,
... i
appeal sans merit, thus dismissed.
·'!i.·,
833 H
834 SUPREME COURT REPORTS [2008] 3 S.C.R.
)

A Words and Phrases: ~

'Customs' - Meaning of in the context of Hindu Code!
Old Hindu Law.
'Religious efficacy of sonship' - Applicability of
B
The question which arose for determination in this
appeal was .as to whether a Hindu belonging to Vaish
,"
r
community could adopt a son as per custom prevalent in
that co~munity.
c Appellants contended that the custom to adopt the
son of sister was established; that there was enough
material to show that the family members treated 'C' as
the adopted son and, therefore, the First Appellate Court's
judgment and decree should have been maintained; that
D the Trial Court and the High Court should not have given ,. -
\
any undue importance. to the fact about the Jenau
ceremony being held on the same day, overlooking the
fact that the evidence was being given by the witness who
was more than 80 years old; and that in any event do away
E with the requirement to prove legality of adoption and that
the adoption took place sometime in 1928-1929.
Dismissing the appeal, the Court
HELD: 1.1 Since the alleged adoption took place
< ,,_
F prior to enactment of Hindu Adoption and Maintenance
Act, 1956, the old Hindu Law is applicable. (Para - 13) •
[846-B]
1.2 Relevant provisions relating to custom as defined
in the Hindu Code are that Custom is an established
G
practice at variance with the general law; that a custom
varying the general law may be a general, local, tribal or
family custom; that general customs includes a custom -+ ...
common to any considerable class of persons; that a
·H custom Which:. is applicable to a locality, tribe, sect or a
SALEKH CHAND (DEAD) BY LRS. v. 835
SATYA GUPTA AND ORS.

• family is called a special custom; that Custom caf!not A
override express law; that Custom has the effect of
modifying the general personal law, but it does not
override the statute law, unless it is expressly sav.ed by
it; that such custom must be ancient, uniform, certain,
peaceable, continuous and compulsory; that no custom B
.,, ~ is valid if it is illegal, immoral, unreasonable or opposed
-.:- to public policy; that he who relies upon custom varying
the general law must plead and prove it; that Custom must
be established by clear and unambiguous evidence.
(Para - 16) [847-D-H; 848-A, BJ C
Hindu Code Volume 1, Fifth Edition by Sir H.S. Gour -
referred to.
1.3 Custom must be ancient, certain and reasonable
" as is generally said. It will be noticed that in the definition D
i
in Cl. (a) of s. 3 of the Hindu Adoption and Maintenance
Act, the expression 'ancient' is not used, but what is
intended is observance of custom or usage for a long
time. (Para - 17)
E
1.4 All that is necessary to prove is that the custom
or usage has been acted upon in practice for such a long
period and with such invariability and continuity as to
""' ), show that it has by common consent been submitted to
as the established governing rule in any local area, tribe, F
community, group or family. Certainty and
reasonableness are indispensable elements of the rule.
(Para - 17) [848-C, D, E]
1.5 The primary object of adoption was to gratify the
means of the ancestors' by annual offerings and therefore G
it was considered necessary that the offerer should be
r... ~ as much as possible a reflection of a real descendant and
had to look as much like a real son as possible and
certainly not be one who would never have been a son.
Therefore, the body of rules was evolved out of a phrase H
836 SUPREME COURT REPORTS [2008] 3 S.C.R.

A of Saunaka that he must be 'the reflection of a son'. The
restrictions flowing from this maxim had the effect of
eliminating most of the forms of adoption. The whole law
of Dattaka adoption is evolved from two. important texts
and a metaphor. The texts are of Manu and Vasistha, and
B the metaphor that of Saunaka. Manu provided for the
identity of an adopted son with the family into which he
was adopted. (Para - 18) [848-H; 849-A, B, CJ
Hindu Law, Third Edition p.899 by S.V. Gupte - referred
to.
c
Manu.Chapter IX, pages 141-142 as translated by Sir
W. Jones - referred to.
1.6 The object of an adoption is mixed, being
religious and secular. According to Mayne, the
D recognition of the institution of adoption in early times
had been more due to secular reasons than to any "' •
religious necessity, and the religious motive was only
secondary; but althoug~ the secular motive was
dominant, the religious motive was deniable. The religious
E motive for adoption never altogether excluded the secular
motive. (Para - 18) [849-C, D, E]

F
to.
Kishori Lal vs. Chaltibai AIR (1959) SC 504 - referred

Hindu Law and Usage, Twelfth Edition, page 329 by
Mayne - referred to.
. -

1.7 It is unsafe to embark upon an enquiry in each
case as to whether the motives for a particular adoption
were religious or secular and an intermediate view is
G possible that while an adoption may be a proper act,
inspired in many cases by religious motives, courts are
concerned with an adoption, only as the exercise of a legal
right by certain persons. The Privy Council's decision in -' ~
Amarendra Mansingh's case has reiterated the well
H established doctrine as to the religious efficacy of
SALEKH CHAND (DEAD) BY LRS. v. 837
SATYA GUPTA AND ORS.

sonship, as the foundation of adoption. The emphasis has A
-I
" been on the absence of a male issue. An adoption may
either be made by a man himself or·by his widow on his
behalf. The adoption is to the male and it is obvious that
an unmarried womari cannot adopt. The purpose of
adoption is to ensure spiritual benefit for a man after his B
death by offering of oblations and rice and libations of
~
... water to the manes periodically. Woman having no spiritual
~--
needs to be satisfied, was not allowed to adopt for herself.
But in either it is a condition precedent for a valid adoption
that he should be without any male issue living at the time c
of adoption. (Para - 21) [850-F, G; 851-A, B]
V. TS. Chandrashekhara Muda/ie v. Kulandeivelu
Mudalier AIR (1963) SC 185; Hem Singh v. Harnam Singh
AIR (1954) SC 581 and Amarendra Mansingh v. Sanatan
D
Singh, AIR (1933) PC 155 - relied on .
• ; 2.1 It is incumbent on party setting up a custom to
allege and prove the custom on which he relies. Custom
cannot be extended by analogy. It must be established
inductively and not by a priori methods. Custom cannot E
be a matter of theory but must always be a matter of fact
and one custom cannot be deduced from another. It is a
well established I.aw that custom cannot be enlarged by
parity of reasoning. (Para - 23) (851-E, F]
)
" F
Mookka Kone vs. Ammakutti Ammal AIR (1928) Mad 299
r (FB) - referred to.
2.2 Custom is a rule which in a particular family or a
particular class or community or in a particular district has
from long use, obtained the force of law. Coming to the G
facts of the case P.W.1 did not speak any thing on the
position either of a local custom or of a custom or usage
.... .I.. by the community. P.W.2 claimed to be witness of the
ceremony of adoption he was brother-in-law of 'J' son of
'P' who is said to have adopted 'C'. This witness was 83 H
838 SUPREME COURT REPORTS (2008] 3 S.C.R.
_,

A years old at the time of deposition in the Court. He did not I-

speak a word either with regard to the local custom or the
custom of the community. P.W.3 as observed by the lower
appellate Court was only 43 years old at the time of his
deposition whereas 'the adoption had taken piace around
B 60 years back. He has, of course, spoken about the
custom but that is not on his. personal knowledge and ..
this is only on the information given by P.W.2. He himself •
did not speak of such a custom. The evidence of a plaintiff/
appellants was thus insufficient to prove the usage or
c custom prevalenfeither in township of Hapur and around
it or in the Vai~h community. (Para - 25) [852-B-F]
2.3 The evid~nce of D.W.3 refers only to one instance.
From his evidence it cannot be inferred that '0' had
adopted 'M' who was his real sister's son. The trial court
D
found that the evidence of D.W.3 was not so clear and •
unambiguous as to lead to no other conclusion except
that 'M' was son of real sister of '0'. Besides, this solitary
'
instance of adoption of his sister's son cannot amount to
long usage, which h.as obtained the force of law. Mulla
E
has categorically commented that where the evidence
shows that the custom was not valid in numerous
instances, the custom could not be held ti:> be proved. A
custom derives its force from the evidence from long t( ,.
usage having obtained the force of law. (Para - 25)
F
[852-F-G; 853-A]
'
Principles of Hindu Law by Mui/a - referred to.

2.4 A custom may be proved by general evidence as
to its existence by members of the tribe or family who
G
would naturally be cognizant of its existence, and its
exercise without controversy, and such evidence may be
safely acted on when it is supported by a public record of ~ ,.
custom such a·s the Riwaj-i-am or Manual of Customary
H
Law. (Para - 28) [853-D-E]
SALEKH CHAND (DEAD) BY LRS. v. 839
SATYA GUPTA AND ORS.
--. ~
2.5 When a custom is against the written texts of the A
..
Hindu Law then, one who sets up such a custom must.
prove it by a clear and unequivocal language. It may also
be pointed out that the settled law is that for a valid
adoption, not only the person adopting should be capable
of lawfully taking in adoption; but the person giving must B
be capable of lawfully giving in adoption and the person
-. ·~
adopted must be capable of being lawfully taken in
adoption. It is necessary that all these three conditions
should be satisfied· and that it is not sufficient that one of
them be satisfied. [Para 29] [853-F, G, H; 854-A] c
-
Principles of Hindu Law by Mui/a - referred to.
2.6 So far as the evidence adduced is concerned,
reliance was placed on the evidence of three witnesses.
PW 1 did not speak about any custom. Similarly, PW 2 did D
• not speak about any custom though he claimed to be
' present at the time of adoption. The present appellant, ~w
3, is ouJsider of the family. He also accepted that he did
not have personal knowledge about the custom. He only
stated that PW2 told him about the custom. Significantly E
· PW2 did not speak about any existence of any custom.
Appellant, PW 3, also accepted that he did not find out as
to what was the custom if any and also that he does not
.... ") know any other instance. Though the Appellate Court had
referred to evidence of DW3 to hold that he had accepted F
that the custom was in existence, as a matter of fact, his
evidence is contrary to and is specific that there was no
custom. (Para - 30) [854-E-H; 855-A]
3. In view of the facts and circumstances of the case
G
and the principles of law as enumerated, the inevitable
conclusion is that the appeal sans merit. (Para - 31)
~ . .\ [855-8]
CIVILAPPELLATE JURISDICTION : Civil Appeal No. 1380
of 2002. H
840 SUPREME COURT REPORTS [2008] 3 S.C.R.
1
A From the final Judgment and Order dated 29.9.2000 of ~

the High Court of Judicature at Allahabad in S.A. No. 354/
1998.
Dinesh Dwivedi, Shalini Kumar and V. Mohana for the
Appellant.
B
Bharat Sangal for the Respondents. ,..
.
The Judgment of the Court was delivered by
Dr. ARIJIT PASAYAT, J. 1. Second appeal filed by the
c defendants having been allowed by the learned Single Judge
of the Allahabad High Court one of the plaintiffs Salekh Chand
has filed this appeal. The legal heirs of the another plaintiff Om
Prakash who died on 28.2.1998 (proforma respondent No.4)
have been impleaded in this appeal. Om Prakash's widow Smt.
D Ram Kumari died on 2.6.1999 and, therefore, their son Munna •
Lal is proforma respondent no.4. '
2. Background facts in a nutshell are as follows:
A suit filed by the plaintiffs Om Parkash and present
E appellant Salakh Chand was dismissed by learned Additional·
Civil Judge, Ghaziabad in Suit No.699/84. Learned Additional
District Judge, Ghaziabad reversed the judgment and decree
dated 5.3.1990 by judgment and decree dated 22.2.1998. The
plaint averments refer to the following facts:
< .
F
Om Prakash and Salekh Chand filed Suit No.699of1984
against Smt. Satya Gupta and one Brijesh Kumar. Shiv Om "
Banshal and Mahendra Kumar Banshal (Respondent Nos. 2
and 3 in this appeal) were impleaded as defendant nos.3
and 4. The plaint allegations were that House no.104 (old
G
number) with its new numbers 175 and 176 described in the
plaint belonged to one Pares Ram who had four sons namely,
• 4.1
Jagannath, Dina Nath, Anand Swaroop and Battu Mal. The
pedigree was as follows:
H
SALEKH CHAND (DEAD) BY LRS. v. SATYA GUPTA 841 .·
AND ORS. [DFt ARIJIT PASAYAT, J.]
PEDIGREE A

PARES RAM

Jagannath Dina Nath Anand Swaroop Battu Mal
(died issue-less) B
...... I I
Chandra Bhan Surendra Kumar
• (adopted son) (son)

Sm!. Shanti Devi
c
Chawali Devi Satya Gupta Brijesh Kumar
(widow) (daughter) (adopted son)
.defendant no.1 defendant no.2
~ Dina Nath died issue-less out. During his lifetime he had D
f sold his 114th share to Battu Mal. Surendra Kumar and his mother
(widow of Anand Swaroop) had sold their 1/41h share to Smt.
Satya Gupta by registered sale-deed. Brijesh Kumar defendant
no.2 is the adopted son of Battu Mal. On the death of Jagannath
.his son Chandra Bhan succeeded to share of Jagannath in the E
suit property. On the death of Chandra Sh.an his widow
succeeded to the suit property. She executed a sale-deed dated
~
26. 7.1979 of her share in the suit property. Thus the plaintiffs
')
are co-sharers of 1/41h share in the suit property whereas
defendant nos.1 and 2 are co-sharers of 3/8 share each in the F
suit property. It is alleged that Jagannath had no issue. He had
- adopted Chandra Bhan who happens to be the son of his real
sister and the sister's husband's name was also Jagannath.
Ceremony of adoption was performed in accordance with the
customs of the community prevalent among the parties in the G
month of Flagun Samvat 1985. There was a custom in the
community of the co-sharers to adopt sister's son and Smt.
',\. ~
Shanti Devi was wife of Chandra Bhan. The plaintiffs wanted to
get the suit property partitioned and have their separate 1/41h
share in the suit property. On the above pleadings the relief
H
842 SUPREME COURT REPORTS [2008] 3 S.C.R.

A claimed was that the suit property be partitioned by metes and 1 .;--

bounds and the plaintiffs be given possession on the separate
share allotted to them.
"'
3. Defendant no.2 did n0t file any written statement and
suit against him proceeded ex-parte.
B
4. Defendant no.1 (present respondent no.1) and
defendant nos. 3 and 4. contested the suit by filing separate ... ~

written statements. Defendant no.1 in her written statement •
denied the claim of the plaintiffs and it was pleaded that plaintiff
c no.1 Om Prakash was tenant of Smt. Chawali Devi on part of
the land of the disputed property at the rate of Rs.65/- per month
as rent. He inducted plaintiff no.2 as subtenant. Smt. Chawali
Devi, mother of defendant no.1 Smt. Satya Gupta succeeded
to the share of Chawali Devi in the suit property. She filed suit
no.31 of 1985 for ejectment of the plaintiffs, which was then
D
pending. The family pedigree was accepted subject to the
correction that Chandra Bhan and Shanti Devi were wrongly ~ ••
shown as son of Jagannath and widow of Chandra Bhan.
Jagannath died issueless. Likewise Battu Mal had not adopted
any son, Brijesh Kumar, and defendant no.2 Brijesh Kumar was
E not adopted son of Battu Mal. At the time of his death, Battu Mal
was owner of the entire suit property and on his death his widow
Smt. Chawali Devi became owner in possession and on
Chawali Devi's death, defendant no.I Smt. Satya Gupta being
her daughter became owner in possession of the entire suit < ,.
F property. The plaintiffs and other defendants have no share in
the suit property. The sale-deed executed by Smt. Shanti Devi
in favour of the plaintiffs is null and void. Jagannath had not
..
adopted Chandra Bhan son of his sister and according- to the
Hindu custom in 'Vaishya' community sister's son cannot be
G adopted. No such custom was prevalent in the. 'Vaishya'
community of Hapur. Hence the alleged adoption was illegal.
Jagannath died issueless about 50 years back and on his de·ath
Dim1 Nath, Anand Swaroor and Battu Mal alias Jagat Swaroop • 4""' I

became owners in possessiCiln by survivorship and their names
H were mutated in the Municipal records on the application moved
SALEKH CHAND (DEAD) BY LRS. v. SATYA GUPTA 843
AND ORS. [DR. ARIJIT PASAYAT, J.)
~ by Dina Nath and Battu Mal in the year of 1935. Thereafter Battu A
~ Mal has purchased the share of Dina Nath and Anand Swaroop
and thus Battu Mal became sole, owner of the suit property.
Relevant entries were made in the Municipal records for the
assessment years 1946-51. Battu Mal was murdered. One
Surendra Kumar and Smt. Basanti Devi had no share in the B
suit property. But in order to avoid any dispute defendant Satya
Gupta had purchased 1/2 share from Surendra Kumar and Smt.
..- "'' ... ~- Basanti Devi. Battu Mal had never adopted Brijesh Kumar and
Brijesh Kumar is son of one Shambhu Saran who was distantly
related to Battu Mal. Brijesh Kumar was sentenced to life c
imprisonment for committing the murder of Battu Mal in the year
1956 and thus Brijesh Kumar was not entitled to succeed to the
property of Battu Mal. One Sri Hari Shanker Bansal (father of
Defendants no. 3 and 4) was tenant of Smt. Chawali Devi on
part of the suit property for about last 25 years and he had
D
constructed one pucca room on the land under his tenancy.
t
Plaintiff No.1, Om Prakash was also given 7 x 7 feet land of suit
.
c.;
property on rent by Smt. Chawli Devi on which a temporary
wooden Khokha was kept by Om Prakash in which he was doing
Crockery and Shamiyana ousiness. It was also pleaded that
Smt. Chawali Devi executed a will dated 21.6.1962 in favour of E
Defendant 1 in respect to her entire property. She died on
23.5.1980 and on her death defendant no.1 filed Testamentary
Suit No.1/81 in the High Court on the basis of the will dated
21.6.1962 and she was granted Letters of Administration on
"' 9.4.1984. Defendant no.1 is in possession of the suit property F
for last about 20 years and her name is entered in the Municipal
*' Records as owner of the disputed property. Plaintiffs never
objected to it. The answering defendant sold by a registered
sale deed properties to Bansals (Defendants Nos. 3 & 4) and
they are necessary parties to the suit. G
5. Defendants Nos. 3 & 4 in their written statements
adopted the pleadings of defendant no.1 and categorically,
.. " ~ alleged that according to the Hindu custom sister's son cannot
be adopted, hence alleged adoption of Chandra Bhan by
H
844 SUPREME COURT REPORTS [2008] 3 S.C:R.

A Jagannath was against law. 1
~

6. Plaintiffs filed replication in which it was reiterated that
in the Township of Hapur, where Jagannath, Anand Swaroop
etc. lived, there was a custom prevalent among Vaish community
to adopt son of sister. It was also pleaded that since only Battu
B Mal lived in Ghaziabad, he got his name mutated in the Municipal
Records. In the sale deed executed by Surendra Kumar and
Basanti Devi in favour of defendant No.l's 1/41h share is shown
. . ~

;..
to have been sold as 113rd share to defendant no. I.

c 7. On the pleadings of the parties, the trial court framed a
number of issues. Relevant issues are issues nos.1 and 2 which
were as follows:
1. Whether a custom was prevalent in Vaish community
to validly adopt son of the sister?
D
2. Whether Jagannath had legally adopted Chandra
Bhan as a son, if so what is its effect? ~ •
8. Both the parties adduced oral as well as documentary
evidence. The trial court on consideration of the evidence
E adduced before it and also on consideration of legal position
recorded finding that the plaintiffs have failed to establish that
Jagannath had legally adopted Chandra Bhan as his son. They
have also failed to establish that in the Township of Hapur a ...
custom was prevalent in Vaish community, to validly adopt son
,,J
F of sister. The trial court also recorded a finding of fact that the
plaintiffs have failed to establish that the formalities of adoption
were observed in accordance with law. On the other issue also •
the trial court recorded finding of fact against the plaintiffs. The
trial court accordingly dismissed the suit.
G 9. The First Appellant Court reversed the findings and held
that the custom of adoption was prevalent amongst commilhity
and, therefore, Chander Bhan was the legally adopted son of
Jagannath in the suit property and on his death, widow of ~ ~.

Chander Bhan had 1/41h share in the property. The plaintiff's
H suit was accordingly decreed. The High Court in the second
SALEKH CHAND (DEAD) BY LRS. v. SATYA GUPTA 845
AND ORS. [DR. ARIJIT PASAYAT, J.]
t
. appeal formulated the following questions for determination: A
1. Whether the plaintiffs/respondents have successfully
discharged the burden of proof to establish that there
existed a custom in the Vaish community to which the
lineal descendants of Paras Ram belonged, to adopt the
son of sister? 8
~"
,., 2. Whether a Hindu belonging to the regenerated class
could be adopted after performance of' Janeu' ceremony?

3. Whether for proving the factum of adoption it was
necessary to lead evidence of giving and taking of an c
adopted child at the time of ceremony of adoption?
4. Whether recital in a document regarding alleged
adoption is sufficient for proving of the factum of adoption?
10. The High Court found that question no.3 as formulated D
~
above was not a substantial question of law but held that there
was no prevalent custom permitting adoption of the sister's
son and, therefore, the appeal was allowed.
11. In support of the appeal learned counsel for the
E
appellants submitted that the custom was established. There
was enough material to show that the family members treated
Chander Bhan as thf;'l adopted son and, therefore, the First
Appellate Court's judgment and decree should have been
'-' maintained. It was submitted that the Trial Court and the High
Court should not have given any undue importance to the fact F
about the Jenau ceremony being held on the same day,
overlooking the fact that the evidence was being given by the
witness who was more than 80 years old. It is submitted that
even if the defendants acquire any title because of the
transaction with Anand Swarup his share was 1/41h and in any G
event the defendants cannot claim 113rd share. It is further
submitted that even if the stand about the acceptance of
P\ Chander Bhan as an adopted son is to be accepted, that in any
event do away with the requirement to prove legality of adoption.
It is to be noted that the adoption took place sometime in 1928- H
846 SUPREME COURT REPORTS [2008] 3 S.C.R.

'(
A 1929.
~

12. In response, learned counsel for the respondents
submitted that the custom was not established. Evidence of PWs
1, 2 and 3 did not prove existence of custom.

B The rival stands need careful consideration.
13. Since the alleged adoption took place prior to
enactment of Hindu Adoptions and Maintenance Act, 1956 (in
.-
short the 'Act'), the old Hindu Law is applicable. "

c 14. It would be desirable to refer to certain provisions of
the Act, and the Hindu Code which governed the field prior to
the enactment of the Act. Section 3(a) of the Act defines 'custom'
as follows
"3. Definitions.- In this Act, unless the context otherwise
D requires, -
f
(a) 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:
E
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;" <
F
15. Section 4 provides that any text, rule 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 become
inoperative with respect to any matter for which provision was
G made in the Act except where it was otherwise expressly
provided. Section 4 gives overriding application to the
provisions of the Act. Section 5 provides that adoptions are to
be regulated in terms of the provisions contained in Chapter II.
, 4'
Section 6 deals with the requisites of a valid adoption. Section
11 prohibits adoption; in case it is of a son, where the adoptive
H
SALEKH CHAND (DEAD) BY LRS. v. SATYA GUPTA 847
AND ORS. [DR. ARIJIT PASAYAT, J.]
' father or mother by whom the adoption is made hap a Hindu A
son, son's son, or son's son's son; whether by legitimate blood
relationship or by adoption, living at the time of adoption. Prior
to the Act under the old Hindu Law, Article 3 provided as follows
"Article 3-(1) A male Hindu, who has attained the age of .
discretion and is of sound mind, may adopt a son to himself 8
provide he has no male issue in existence at the adoption.
(2) A Hindu who is competent to adopt may authorise
either his (i) wife or (ii) widow (except in Mithila) to adopt
a son to himself." c
16. Where a son became an outcast or renounced Hindu
religion, his father became entitled to adopt another. The position
has not changed after enactment of Caste Disabilities Removal
Act (XXI of 1850) as the outcast son does not retain the religious
capacity to perform the obsequial rites. In case parties are D
governed by Mitakshara Law, additionally adoption can be made
if the natural son is a congenital lunatic or an idiot. Relevant
provisions relating to custom as defined in the Hindu Code are
as follows:
"Custom defined.- Custom is an established practice at E
variance with the general law.
Nature of custom.-A custom varying the generai'law may
be a general, local, tribal or family custom.

. Explanation 1.- A general customs includes a custom F
common to any considerable class of persons.
Explanation 2.-A custom which is applicable to a locality,
tribe, sect or a family is called a special custom.
Custom cannot override express law - G
(1) Custom has the effect of modifying the general personal
law, but it does not override the statute law, unless it is
expressly saved by it. •·
(2) such custom must be ancient, uniform, certain, H
848 SUPREME COURT REPORTS [2008] 3 S.C.R.
;
A peaceable, continuous and compulsory. ,_

Invalid Custom - No custom is valid if it is illegal, immoral,
unreasonable or opposed to public policy.
Pleading and proof of custom - (1) He who relies upon
B custom varying the general law must plead and prove it.
(2) Custom must be established by clear and unambiguous ... .,, .
:.-
evidence."
(See Sir H.S. Gour's Hindu Code Volume 1, Fifth Edition.)
c 17. Custom must be ancient, certain and reasonable as is
generally said. It will be noticed that in the definition in Cl. (a) of
Section 3 of the Act, the expression 'ancient' is not used, but
what is intended is observance of custom or usage for a long
time. The English rule that' a custom, in order that it may be
D legal and binding, must have been used so long that the memory. ~
of man runneth not to the contrary' has not been strictly appli!i!d l
to Indian conditions. All that is necessary to prove is that the
custom or usage has been acted upon in practice for such a
long period and with such invariability and continuity as to show
E that it has by common consent been submitted to as the
established governing rule in any local area, tribe, community,
group or family. Certainty and reasonableness are indispensable
elements of the rule. For determination of the question whether
there is a valid custom or not, it has been emphasized that it ,<:

F must not be opposed to public policy. I shall deal with the
question of public policy later on.
18. The origin of custom of adoption assumes great
importance. The origin of custom of adoption is lost in antiquity.
The ancient Hindu Law recognized twelve kinds of sons of whom
G five were adopted. The five kinds of adopted sons in early times
must have been of very secondary importance, for, on the whole,
they were, relegated to an inferior rank in the order of sons. Out
of the five kinds of adopted sons, only two survive today; namely, t "~ .
":·
the. Dattaka form prevalent throughout India and the Kritrima
H · form confined to Mithila and adjoining districts. The primary object
SALEKH CHAND (DEAD) BY LRS. v. SATYA GUPTA 849
t AND ORS. [DR. ARIJIT PASAYAT, J.]
of adoption was to gratify the means of the ancestors' by annual A
offerings and therefore it was considered necessary that the
offerer should be as much as possible a reflection of a real
descendant and had to look as much like a real son as possible
and certainly not be one who would never have been a son.
Therefore, the body of rules was evolved out of a phrase of B
···~.,
Saunaka that he must be 'the reflection of a son'. The restrictions
flowing from this maxim had the effect of eliminating most of the
"'" forms of adoption. (See Hindu Law by S. V. Gupte, Third Edition
at pages 899"906). The whole law of Dattaka adoption is
evolved from two important texts and a metaphor. The texts are c
of Manu and Vasistha, and the metaphor that of Saunaka. Ma nu
provided for the identity of an adopted son with the family into
which he was adopted. (See: Manu.Chapter IX, pages 141-142,
as translated by Sir W. Jones). The object of an adoption is
mixed, being religious and secular. According to Mayne, the
~ D
I recognition of the institution of adoption in early times had been
more due to secular reasons than to any religious necessity,
and the religious motive was only secondary; but although the
secular motive was dominant, the religious motive was deniable.
The religious motive for adoption never altogether excluded the
secular motive. (See Mayne's Hindu Law and Usage, Twelfth E
Edition, page 329).
19. As held by this Court in V. TS. Chandrashekhara
:>
' Muda/ie v. Kulandeivelu Mudalier (AIR 196.3 SC 185),
substitution of a son for spiritual reasons is the essence of F
adoption; and consequent devolution of property is mere
accessory to it; the validity of an adoption has to be judged by
spiritual rather than temporal considerations; and, devolution of
property is only of secondary importance.
20. In Hem Singh v. Harnam Singh (AIR 1954 SC 581), it G
was observed by this Court that under the Hindu Law adoption
"' ,.._ 1..- is primarily a religious act intended to confer spiritual benefit on
the adopter and some of the rules have therefore been held to
be mandatory, and compliance with them regarded as a
condition of the validity of the adoption. The first important case H
850 SUPREME COURT REPORTS [2008J 3 S.C.R.
f

A on the question of adoption was decided by the Privy Council in r
the case of Amarendra Mansingh v. Sanatan Singh, AIR 1933
PC 155. The Privy Council said
"Among the Hindus, a peculiar religious significance has
attached to the son, through Brahminical influence, although
B in its origin the custom of adoption was perhaps purely
... '(I -
secular. The texts of the Hindus are themselves instinct
--~
with this doctrine of religious significance. The foundation
of the Brahminical doctrine of adoption is the duty which
every Hindu owes to his ancestors to provide for the
c continuance of the line and the solemnization of the
necessary rites."
With these observations it decided the question before it,
viz., that' of setting the limits to the exercise of the power of a
widow to adopt, having regard to the well established doctrine
D <
as to the religious efficacy of sonship. In fact the Privy Council \

in that case regarded the religious motive as dominant and the
secular motive as only secondary.
21. This object is further amplified by certain observations
E of this Court. It has been held that an adoption results in changing
the course of succession, depriving wife and daughters of their
rights, and transferring the properties to comparative strangers
or more remote relations. [See : Kishori Lal v. Chaltibai (AIR
<:
1959 SC 504)]. Though undeniably in most of the cases motive
F is religious, the secular motive is also dominantly present. We
are not concerned much with this controversy, and as observed
by Mayne it is unsafe to embark upon an enquiry in each case
as to whether the motives for a particular adoption were religious
or secular and an intermediate view is possible that while an
adoption may be a proper act, inspired in many cases by
G
religious motives, courts are concerned with an adoption, only
as the eii:ercise of a legal right by certain persons. The Privy
f .r A
Council's decis'ion in Amarendra Mansingh's case (supra), has
reiterated the well established doctrine as to the religious
efficacy of sonship, as the foundation of adoption. The emphasis
H
SALEKH CHAND (DEAD) BY LRS. v. SATYA GUPTA 851
AND ORS. [DR. ARIJIT PASAYAT, J.)
•
.. has been on the absence of a male issue. An adoption may A
either be made by a man himself or by his widow on his behalf.
The adoption is to the male and it is obvious that an unmarried
woman cannot adopt. For the purpose of adoption is to ensure
spiritual benefit for a man after his death by offering of oblations
and rice and libations of water to the manes periodically. Woman B
' ~ . having no spiritual needs to be satisfied, was not allowed to
-<'- adopt for herself. But in either it is a condition precedent for a
valid adoption that he should be without any male issue living at
the time of adoption."
22. In Mookka Kone v. Ammakutti Ammal [AIR 1928 Mad c
299 (FB)], it was held that where custom is set up to prove that
it is at variance with the ordinary law, it has to be proved that it is
not opposed to public policy and that it is ancient, invariable,
continuous, notorious, not expressly forbidden by the legislature
~
I
and. not opposed to morality or public policy. It is not disputed D
that even under the old Hindu law, adoption during the lifetime
of a male issue was specifically prohibited. In addition, I have
observed that such an adoption even if made would be contrary
to the concept of adoption and the purpose thereof, and
unreasonable. Without entering into the arena of controversy E
whether there was such a custom, it can be said that even if
there was such a custom, the same was not a valid custom."
";>, 23. It is incumbent on party setting up a custom to allege
I
and prove the custom on which he relies. Custom cannot pe
extended by analogy. It must be established inductively and not F
~

by a priori methods. Custom cannot be a matter of theory but
must always be a matter of fact and one custom cannot be
deduced from another. It is a well established law that custom
cannot be enlarged by parity of reasoning.
G
24. Where the proof qf 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; but the decision
would not in that case be a satisfactory precedent if in any future
H
852 SUPREME COURT REPORTS [2008] 3 S.C.R.

'
A suit between other parties fuller evidence with regard to the ,.
alleged custom should be forthcoming. A judgment relating to
the existence of a custom is admissible to corroborate the
evidence adduced to prove such custom in another case. Where,
however a custom is repeatedly brought to the notice of the
B courts, the courts, may hold that the custom was introduced into
law without the necessity of proof in each individual case.
~-
_,~

25 . Custom is a rule which in a particular family or a
particular class or community or in a particular district has from
long use, obtained the force of law. Coming to the facts of the
c case P.W.1 did not speak any thing on the position either of a
local custom or of a custom or usage by the community, P.W.2,
Murari Lal claimed to be witness of the ceremony of adoption
he was brother-in-law of Jagannath son of Pares Ram who is
said to have adopted Chandra Bhan. This witness was 83 years
D old at the time of deposition in the Court. He did not speak a ~

word either with regard to the local custom or the custom of the I
community. P.W.3 as observed by the lower appellate Court was
only 43 years' old at the time of his deposition where as the
adoption had taken place around 60 years back. He has, of
E course, spoken about the custom but that is not on his personal
knowledge and this is only on the information given by P.W.2,
Murari Lal. He himself did not speak of such a custom. The
evidence of a plaintiff was thus insufficient to prove the usage
or custom prevalent either in township of Hapur and around it or ,,
F in the community ofVaish. The evidence of D.W.3 refers only to
one instance. From his evidence it cannot be inferred that Om ....
Prakash had adopted Munna Lal who was his real sister's son.
As already pointed out above, the trial court found that the
evidence of D.W.3 was not so clear and unambiguous as to
lead to no other conclusion except that Munna Lal was son of
G
real sister of Om Prakash. Besides, this solitary instance of
adoption of his sister's son cannot amount to long usage, which
has obtained the force of law. Mulla has categorically f ·" "
commented that where the evidence shows that the custom was
not valid in numerous instances, the custom could not be held
H
SALEKH CHAND (DEAD) BY LRS. v. SATYA GUPTA 853
AND ORS. [DR. ARIJIT PASAYAT, J.]
.• to be proved. A custom derives its force from the evidence from A
long usage having obtained the force of law.
26. All that is necessary to prove is that usage has been
acted upon in practice for such a long period with such
invariability as to show that it has, by consent, been submitted
so as to establish governing rules of a particular locality or B
' "' ,.c. community.
27. A custom, in order to be binding must derive its force
from the fact that by long usage it has obtained the force of law,
but the English rule that "a custom in order that it may be legal c
and binding, must have been used long that. the memory of man
runneth not to the contrary" should not be strictly applied to Indian
conditions. 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, D.
, been submitted to as the established governing rule of a
I
particular locality.
28. 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 E
controversy, and such evidence may be safely acted on when it
is supported by a public record of custom such as the Riwaj-i-

-
am or Manual of Customary Law.
':;.\
29. In yet another decision reported in Hem Singh and
another v. Hakim Singh and another (AIR 1954 SC 581), this F
"' Court observed that the custom recorded in the 'Riwaj-i-am' is
in derogation of the general custom and those who set up such
a custom must prove it by clear and unequivocal language.
Similarly, when a custom is against the written texts of the Hindu
Law then, one who sets up such a custom must prove it by a G
clear and unequivocal language. It may also be pointed out that
~ "'--\
the settled law is that for a valid adoption, not only the person
adopting should be capable of lawfully taking in adoption; but
the person giving must be capable of lawfully giving in adoption
and the person adopted must be capable of being lawfully.taken H
854 SUPREME COURT REPORTS [2008] 3 S.C.R.
-(

A in adoption. It is necessary that all these three conditions should !'"

be satisfied and that it is not sufficient that one of them be
satisfied. In the case of Hem Singh (supra) this court quoted
with approval of some of the observations in Mu Ila's Principles
. of Hindu Law at Page 541 of XI Edition with such observations
B in paragraph 434 to the following effect:
~ ,
"It has similarly been held that the texts which prohibit the .J,__
adoption of an only son, and those which prohibit the
adoption of an only son, those which enjoin the adoption
of a relation in preference to a stranger, are only directory;
c therefore, the adoption of an only son, or a stranger in
preference to a relation, if completed, is not invalid; that in
cases such as the above, where the texts are merely
directory, the principle of factum valet applies, and the act
done is valid and binding."
D ~
But just thereafter the following observations occurred in \
the same paragraph :
"But the texts relating to the capacity to give, the capacity
to take, and. the capacity to be the subject of adoption are
E mandatory. Hence the principle of factum valet is ineffectual
in the case of an adoption in contravention of the provisions
of those texts."
30. So far as the evidence adduced is concerned, reliance
"' •
was placed on the evidence of three witnesses. As noted above
F PW 1 did not speak about any custom. Similarly, PW 2 did not
speak about any custom though he claimed to be present at the
.
time of adoption. The present appellant was PW 3. He is
outsider of the family. He also accepted that he did not have
personal knowledge about the custom. He only stated that PW2
G told him about the custom. Significantly PW2 did not speak about
any existence of any custom. Appellant PW 3 also accepted
that he did not find out as to what was the custom if any and also t .. ':.
that he does not know any.other instance. Though the Appellate
•' t"

Court had referred to evidence of DW3 to hold that he had
ti accepted that the custom was in existence, as a matter of fact,
SALEKH CHAND (DEAD) BY LRS. v. SATYA GUPTA 855
AND ORS. [DR. ARIJIT PASAYAT, J.]
his evidence is contrary to and is· specific that there was no A.
custom. The First Appellate Court had relied on the evidence of
Munna Lal to conclude that the son of Reba Saran was given in
adoption. Munna Lal specifically stated that the son of Jagannath
who was taken in adoption is not the son of sister of Saran.
31. In view of the aforesaid factual situation and the 8
principles of law enumerated above, the inevitable conclusion
is that the appeal is sans merit, deserves dismissal, which we
direct.
S.K.S. Appeal dismissed. c

~ I