TaxTMI 
TaxTMI 
2017 (11) TMI 1868
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....hand who is none other than the father of the 1st Defendant/Appellant herein. Right from his childhood, Appellant used to reside with his paternal uncle Govardhandas. During his life Govardhandas used to carry on business of timber in the name of Defendant No. 5 initially and later he inducted into business the Appellant and Defendant Nos. 2 to 4 as partners. After the death of Govardhandas his wife Sundarabai who is the original Plaintiff in the suit was also taken as a partner. When the other partners failed to give her share in the business, she issued notice to all the partners to give accounts of 5th Defendant partnership firm and also to pay the amount of her share. 3. In the year 1984, wife and children of Chunilal i.e. brother of Govardhandas issued notice, to Sundarabai and the Appellant, stating that Appellant is the adopted son of late Govardhandas as such he cannot claim any share in his natural family and further sought for partition of the joint family properties, for that Sundarabai issued a reply notice denying the factum of adoption and thereafter filed the present suit i.e. Special Civil Suit No. 395/1987 for dissolution and accounts of Defendant No. 5 partners....
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....photographs taken during the adoption ceremony. b. That the photographs do not portray any ceremony being performed by the priest involving the Appellant and his adoptive parents. c. The alleged adoption took place one day before the marriage of Asha (daughter of Respondent), which casts shadow on the photographs taken during the ceremony. d. That there was no evidence on record other than the oral testimony of one Chaturbuj Sharma that he performed the adoption ceremony as a priest. e. That Appellant himself has contradicted the oral testimony of the alleged priest Chaturbuj Sharma concerning the ceremony of taking the Appellant into the lap of Govardhandas. f. That the letters exhibited to show the change of name does not cogently establish the adoption. g. From the date of adoption up to filing the suit, the Appellant continued to use his earlier name without adopting the name of the adopted father. h. The Income tax returns of the Appellant after 1973 indicates that he continued to use his earlier name. i. No explanation forthcoming from the Appellant concerning the above suspicious circumstances. ....
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.... any local area, tribe, community, group or family; Provided that the Rule is certain and not unreasonable or opposed to public policy; and Provided further that, in the case of a Rule applicable only to a family, it has not been discontinued by the family; 10. Section 10 of the Act provides thus- 10. PERSONS WHO MAY BE ADOPTED-No person shall be capable of being taken in adoption unless the following conditions are fulfilled, namely- ... (iii) he or she has not been married, unless there is a custom or usage applicable to the parties which permits persons who are married being taken in adoption; (iv) he or she has not completed the age of fifteen years, unless there is a custom or usage applicable to the parties which permits persons who have completed the age of fifteen years being taken in adoption. 11. From the aforesaid provisions, it is clear that a person cannot be adopted if he or she is a married person, unless there is a custom or usage, as defined Under Section 3(a), applicable to the parties which permits persons who are married being taken in adoption. 12. India has a strong tradition of respect for difference and diversity ....
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....atisfaction of the Court in a most clear and unambiguous manner. It should be noted that, there are many types of customs to name a few-general customs, local customs and tribal customs etc. and the burden of proof for establishing a type of custom depend on the type and the extent of usage. It must be shown that the alleged custom has the characteristics of a genuine custom viz., that it is accepted willfully as having force of law, and is not a mere practice more or less common. The acts required for the establishment of customary law ought to be plural, uniform and constant. 14. Custom evolves by conduct, and it is therefore a mistake to measure its validity solely by the element of express sanction accorded by courts of law. The characteristic of the great majority of customs is that they are essentially non-litigious in origin. They arise not from any conflict of rights adjusted, but from practices prompted by the convenience of society. A judicial decision recognizing a custom may be relevant, but these are not indispensable for its establishment. When a custom is to be proved by judicial notice, the relevant test would be to see if the custom has been acted upon by a cour....
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....f adopting married sons in the community of the Appellant. The only evidence, the Appellant has adduced, is his own testimony and a word of a priest who had performed the ceremony. A general custom which the Appellant intends to prove requires greater proof than the one Appellant adduced before the court. Moreover, there is no dispute with regard to the fact that the Appellant did not plead in his written statement about existence of any custom as such. Parties to a suit are always governed by their pleadings. Any amount of evidence or proof adduced without there being proper pleading is of no consequence and will not come to the rescue of the parties. 19. At this juncture it would be necessary to observe the law laid down by this Court in numerous cases that the burden of proving adoption is a heavy one and if there is no documentary evidence in support of adoption, the Court should be very cautious in relying upon oral evidence. This Court held so in Kishori Lal v. Mst. Chaltibai AIR 1959 SC 504, We can do no better than to quote the relevant passage from the above judgment which reads as under: As an adoption results in changing the course of succession, depriving wi....
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....it would be necessary to observe statements of certain witnesses. Appellant, himself, got examined as a witness, which is marked as Ex. 121. He stated that after death of his biological father in 1972, he came to Nasik to continue his education while living with Govardhandas at his residence. As per his evidence, during the marriage of Asha, Govardhandas decided to adopt the Appellant and the ceremony was held on 08.07.1973, one day before the marriage. The adoption ceremony was held at the residence of Govardhandas. As Appellant and Govardhandas were from the Jain community, there was no bar in their community either for adoption of a married son or concerning the age of the adopted son. It is stated that there is no custom in their community to reduce the adoption in writing. One Chaturbuj Maharaj was the priest who performed the said ceremony in the presence of his biological mother, sisters and other relatives. His biological mother gave Appellant in adoption to Govardhandas and Sundarabai i.e. the original Plaintiff. Govardhandas and Sundarabai performed the pooja of the said ceremony. Said ceremony was held with the desire and consent of Sundarabai and Govardhandas. After the....