TaxTMI 
TaxTMI 
TaxTMI 
2017 (11) TMI 1868
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.... 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 partnership firm and also sought for a declaration that....
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....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. j. Moreover, the adopted mother herself is contesting the factum of adoption. 6. Learned Counsel appearing on behalf of the Appellant has argued that- a.....
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....en 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 which is reflected under the Hindu family laws as it is applicable to diverse communities living from the southern tip to northern mountains, from western plains to eastern hills. Diversity in our country brings along various customs which defines what India is....
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....e 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 court of superior or coordinate jurisdiction in the same jurisdiction to the extent that justifies the court, which is asked to apply it, in assuming that the persons or the class of persons concerned in that area look upon the same as binding in relation to circumstances similar to those under consideratio....
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....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 wives and daughters of their rights and transferring properties to comparative strangers or more remote relations it is necessary that the evidence to support it should be such that it is free from all suspicion of fraud and so consistent and probable as to leave no occasion for doubting its truth. Failure to produce accounts, in circu....
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....dhandas 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 Appellant was given in adoption to Govardhandas, Appellant was instructed by the priest to sit on the lap of Govardhandas and Sundarabai. After the ceremony, lunch was served to all persons, who had attended the ceremony. It is to be noted that invitation cards were printed but the same were sent separately and not with the marriage invitation ca....