LAXMIBAI Vs. BHAGWANTBUVA

JUDGEMENT

(1.) This appeal has been preferred against the impugned judgment andorder 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 whichthe High Court has affirmed the judgment and order of the FirstAppellate Court in Regular Civil Appeal No. 92 of 1977, dismissingCivil Suit No. 52 of 1971, which stood allowed by the trial court videjudgment and decree dated 15.3.1977.

(2.) The facts and circumstances giving rise to this appeal are :

(3.) Shri Aarohi Bhalla, learned counsel appearing for theappellants, has submitted that there is a presumption of validity withrespect to the registered adoption deed under Section 16 of HinduAdoptions and Maintenance Act, 1956 (hereinafter referred to as 'the Act 1956'). Therefore, the appellate courts committed an error indoubting the validity of the registered adoption deed. The burden ofrebutting 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 made anyreference to the said deed at all. Therefore, in the absence of anyattempt 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 375years, a total of four adoptions have taken place, and that it wasonly in each of these cases that a male child from within the familywas adopted, and not one from outside. Thus, the appellate courtscommitted an error in holding that there was a custom to this effect.In the absence of any evidence, a statement alleging that either oneof the said adoptive parents wanted to take a child in adoption fromoutside, and that the same was attempted, must not be accepted.Moreover, the occurance of only four instances, over a period ofalmost four centuries, is not sufficient to establish the existence ofa custom. The non-examination of Smt. Laxmibai during the trial of thesuit on account of her death, prior to the commencement of the trial,cannot be taken as a circumstance against the appellants. Thus, theappellate courts have erred in taking such a perverse view. Thephotographer present at the adoption ceremony, who was examined by theappellants before the trial court, was not asked any questions in thecross-examination by the respondents, with respect to any doubts theyhad regarding the genuineness of either the negatives, or thephotographs of the ceremony. In the absence of resorting to such acourse by the respondents, the appellate courts could not have drawnany adverse inference as regards his deposition, particularly when thephotographer had proved the existence and validity of both thenegatives, and the photographs. Thus, the judgments and decrees ofthe appellate courts are liable to be set aside, and the judgment ofthe trial court deserves to be restored.