Behru Lal v. Chattra — 1980 DIGILAW 415 (RAJ)

Mahendra Bhushan, J.—This is a defendants second appeal in a suit for cancellation of sale-deed and possession of a house situated in Chhab-ada. 2. The following genealogical table will show the relationship of the respondents and one Smt. Narayani, daughter of Parma, who transferred the suit house for a consideration of Rs. 400/- under a registered sale-deed dated March 9, 1959 in favour of the appellants :- Continue..... Next Page Ganesh I Nennha II Parma I Bhawana II Narayan III Deva (Went in adoption to Parma) Mangi Lal (died mior) Deva (adoption son) Smt. Narayani (daughter) I Lalji (Plaintiff No.1) II Panna (Defendant No. 3) III Chattru (Plaintiff No.2) IV Amara (Plaintiff No. 3) 3. Mangilal while he was a minor pre-deceased his father. Parma Parma had one daughter Smt. Narayani but she went in marriage to one Dhuliya of village Nahargarh, but Narayani became widow after a few years and a few years prior to the filing of the suit she started living with Deva. Parma had taken in adoption Deva, the youngest son of Nena about 45 years prior to the riling of the suit which was filed on March 16,1961. The said Deva was already married and was aged about 22 to 25 years at the time of alleged adoption, which is said to have taken place in accordance with the custom and usage of Khatteeks community. At the time of alleged adoption of Deva by Parma there were two sons Lalji and Panna and they continued to live in the family of Nennha, natural father of Deva. After the alleged adoption two more sons were born to Deva, namely, Chattru and Amara. Smt. Narayani widowed daughter of Parma transferred the suit house situated in Chhabada to Behru Lal and Jailal, appellants, under a registered sale-deed dated March 9, 1959 for a consideration of Rs. 400/-. The three sons of Deva, namely, Lalji, Chattru and Amara filed a suit againat the appellants and Panna in the Court of Munsiff. Baran on March 16, 1961 for declaring the sale-deed as void and for possession of the house transferred under it. The suit was filed on the ground that amongst the community of Khatteeks there was a custom of adopting a married person and Deva had been adopted as a son by Parma, his real uncle, about 45 years prior to the filing of the suit. The suit was filed on the ground that amongst the community of Khatteeks there was a custom of adopting a married person and Deva had been adopted as a son by Parma, his real uncle, about 45 years prior to the filing of the suit. After the adoption Deva lived with Parma and as such is the owner of the suit house and Smt. Narayani had no right to transfer it. 4. The suit was contested by the appellants, though Panna, the brother of Chattra and Amara, admitted all the allegations of the plaint. The contesting defendants, namely, the appellants did not admit that Parma had adopted Deva and that there was a custom in the community of Khatteeks to adopt a married person. 5. On the pleadings of the parties the learned trial Court framed issues which when literally translated in English will read as follows : 1. Whether Parma had taken Deva in adoption? 1A. Whether amongst the community of Khateeks to which the parties belong, there is a custom to take a person who is married and has children in adoption. If so what shall be its effect on the suit ? 2. Whether the sale-deed, referred to in para 8 of the plaint is fictitious unauthorised and liable to be set aside? 3. Whether the suit is within limitation? 4. Relief? 6. The learned Munsiff, Baran by his judgment and decree dated December 14, 1964 decreed the suit of the respondents, Chattra and Amara in part to the effect that the sale-deed executed by Smt. Narayani on March, 16, 1959 is null and void against these respondents and Chattaru and Amara are entitled for joint possession over the suit house. An appeal was filed by the appellants in the Court of Senior Civil Judge, Baran and Chattara and Amara also filed cross objections. The learned Senior Civil Judge, Baran, under his judgment and decree dated December 21, 1967 dismissed the appeal of the appellants but the cross objections were allowed. Consequently the suit of Chattara and Amara to the full extent was decreed and the sale-deed executed by Smt. Narayani Devi was set aside. The appellants were also directed to hand-over the possession of the suit house to the plaintiffs, Chattara and Amara. 7. I have heard the learned counsel for the parties and have perused the record of the case. 8. The appellants were also directed to hand-over the possession of the suit house to the plaintiffs, Chattara and Amara. 7. I have heard the learned counsel for the parties and have perused the record of the case. 8. The only contention of the learned counsel for the appellants is that the instances of the alleged adoption of a married male having children in the community of Khatteeks were of recent origin and not a single instance of the period when the adoption of Deva is alleged to have taken place, has been proved and, therefore, the various instances do not go to prove a custom in the community of Khatteeks 45 years prior to the filing of the suit when Deva was adopted. In short his submission is that proof of custom within a period of 20 or 25 years does not prove a custom prior to it as the evidence of custom will not relate back. 9. The contention of Mr. Rastogi, the learned counsel for the respondents, on the other hand, is that before a custom can be relied upon it must be ancient, certain and reasonable and the proof of existence of a custom for a period of 20 to 25 years will be sufficient to prove that it was ancient and, therefore, the existence of such a custom will be held proved by the Courts even before the period for which the evidence has been brought on record. He further submits that under Section 114 Illustration (d) of the Law of Evidence the Court, in the facts and circumstances of a particular case, may raise a presumption backward and not only forward that a thing or state of things which has been shown to be in existence within a certain period was in existence. 10. It will be stated at the very out-set that so far as the factum of adoption of Deva by Parma about 40 to 45 years prior to the filing of the suit is concerned, it is a finding of fact of both the Courts, a finding of fact based on material and as such the same cannot be disturbed in second appeal. But whether the various instances of adoption of a married male having children in the community of Khatteeks go to prove such custom is a question of law which can be gone into second appeal. But whether the various instances of adoption of a married male having children in the community of Khatteeks go to prove such custom is a question of law which can be gone into second appeal. Though the law is settled that custom is one of the three sources of Hindu Law and burden lies upon the person who alleges the existence of a custom derogatory to Hindu Law. The English Rule that "a custom, in order that it may be legal and binding must have been used so long that the memory of a man runneth not to the contrary" cannot be applied to Indian conditions and as already observed above it must be ancient and it will depend upon the circumstance of each case what antiquity must be established before the custom can be accepted. What is necessary to be proved is that the usage has been acted upon in practice for such along period and with such invariability as to show that it has, by common consent, been submitted to as the established governing rule of a particular community. (Mt. Subhani vs. Nawab (I) and Gokul Chand Vs. Praveen Kumari (2). ) 11. The evidence of instances of abortion of married males having children in the community of Khatteeks range from 18 to 30 years. Kishanlal P.W. 13, speaks of his own adoption when he was married and having children about 18 to 20 years ago. Another instance given by him of such adoption is of one Phundilal of village Sangod. He further states that there is custom in his community (he belongs to Khateeks community) that married male having children is adopted. Durga Lal, PW 14, aged 42 years, speaks of his own adoption by Chaturbhuj about 25 years ago. He also speaks of the adoption of Seva Khatteek who was married. Jagnnath, PW 15, aged 60 years, who is also Khatteek by caste, states that there is a custom amongst Khatteeks of Jhalawar, Bundi, Tonk and Kota and that a married male having children is adopted. He has given four instances of such adoptions in his community. He states that in village Kajed such adoption of Behari took place about 30 to 35 years ago. The duration of the other instances of such adoptions given by him has been given as 27 to 28 years. Motilal, PW. He has given four instances of such adoptions in his community. He states that in village Kajed such adoption of Behari took place about 30 to 35 years ago. The duration of the other instances of such adoptions given by him has been given as 27 to 28 years. Motilal, PW. 17, also states about a custom in the community of Khatteeks of adopting married males having children. He has also given three instances, one of them is alleged to have taken place about 25 to 30 years ago. Bansi, PW. 19, states of his own adoption when he was married about 22 years ago. He also states that he had a female child at the time of his adoption. Against this evidence there is no rebuttal of the instances cited in the evidence of the witnesses for the respondents. There is bare denial that no such adoptions took place. 12. It can, therefore, be said that evidence has been led of the instances ranging from 18 to 35 years of the adoption of married males having children amongst the community of Khatteeks. Apart from this, there is also evidence that such custom is prevalent in that community. No doubt, there is no evidence about the instance of 40 or 45 years when the adoption of Deva, a married male having children by Parma, took place. But as I shall presently show the evidence of instances of the duration of 18 to 35 years of adoptions of married males having children in the community of Khatteeks in Chhabada, Jhalawar, Tonk, and Kota, is sufficient to prove that this custom was ancient and was also in existence when the adoption of Deva by Parma took place. In Ratilal Nathalal Vs. Motilal Sankal Chand (3) three instances 25 years old and the remaining four which were only of 2 to 9 years before the suit was brought, were held sufficient to prove that custom was ancient. In (Maharajdhiraj sir) Rameshwar Singh Vs. Sheikh Waizul Haq (4) it has been held that it would be very dangerous and improper to lay down any fixed time for which it is necessary to adduce evidence to show that a custom exists. The period covered by evidence relating to custom in that case was only 20 years. In (Maharajdhiraj sir) Rameshwar Singh Vs. Sheikh Waizul Haq (4) it has been held that it would be very dangerous and improper to lay down any fixed time for which it is necessary to adduce evidence to show that a custom exists. The period covered by evidence relating to custom in that case was only 20 years. It was held that it was sufficient, in the facts and circumstances of that case, to establish an immemorial custom. In Madhavrao Raghvendra Vs. Raghavendrarao (5) it has been held that production of general evidence of a respectable and reliable character showing that the particular custom prevails amongst the community to which the witnesses belong, and that the same was observed for a fairly long period of time is sufficient evidence which can be accepted in support of the custom pleaded. It was further held that if instances are cited covering a period of nearly 30 years, it would not be unreasonable to presume that the evidence of those instances shows that the custom has been in existence even before the period covered by those instances. In Basant Singh vs. Brij Raj Saran Singh (6) it was held that customary law, if found to exist in 1880 and 1910, must be taken to have the ordinary attribute of a custom that it was ancient, and that unless contrary it is proved, it must be presumed to have existed prior to 1858 In Motilal Mansukhram vs. Maneklal Dayabhai(7) it has been observed "if then, the evidence shows that for a certain number of years, and some cases app?ar to lay down as a useful guide a period of twenty years, there have been a number of instances in which the alleged custom has been recognised, the presumption arises that the parties concerned have acted in that manner, not from the desire to set up a new custom, but because they are acting in accordance with the tradition of immemorial usage." In Brij Raj Saran Singh Vs. Basant Singh (8) it was held that if the custom of the adoption of an orphan is proved to prevail in 1912, it followes that it had the ordinary attributes of a custom, that is to say, that it was ancient unless there is evidence to the contrary. 13. Basant Singh (8) it was held that if the custom of the adoption of an orphan is proved to prevail in 1912, it followes that it had the ordinary attributes of a custom, that is to say, that it was ancient unless there is evidence to the contrary. 13. I am, therefore, of the opinion that if a custom of adopting a married male having children in the community of Khatteeks is proved to prevail for a period of 20 to 30 years, it follows that it was ancient, certain and reasonable and it is for the other side who challenges its existence to lead evidence to the contrary. 14. It is contended by Mr. Surana, the learned counsel for the appellants, that under Section 114 of the Evidence Act it is discretionary with the Court to raise presumption and the Court is not bound to raise a presumption. He submits that proximity to the adoption in dispute at instances should be a material consideration with the Court. According to him the instances brought on record are of the period 20 to 35 years, whereas the adoption of Deva is said to have taken place 45 years ago. Thus there is no proximity of time in this case, and no presumption should be raised. In support of his submission he has referred to Hemendra Nath Roy Choudhary vs. Jnanendra Prasanna Bhaduri (9) wherein it has been observed that under Section 114 (d) of the Law of Evidence there is presumption that a state of things found to exist at a particular point of time continues, but there is no rule of evidence by which one can presume backwards. But this dictum of the Calcutta High Court has not been approved by their Lordships of the Supreme Court in Ambika Prasad Thakur 10 Vs. Ram Ekbal Rai (dead) by his legal representatives (10) wherein their Lordships have observed : "The rule that the presumption of continuance may operate retrospectively has been recognised both in India, see Anangamanjari Chowdhari Vs. Tripura Eotudari Chowdhrani, 14 Ind. App. 101 at p. 110 (pc). and England, see Bristow vs. Cormican (1878) 3 AC 641 at pp. 669, 670, Dos vs. Young (1845) 8 QB 63; 115 ER 798. The broad observation in Manamthe Rath vs. Girish Chandra Roy, 38 Cal. WN 763 at p. 770 (AIR 1934 Cal. Tripura Eotudari Chowdhrani, 14 Ind. App. 101 at p. 110 (pc). and England, see Bristow vs. Cormican (1878) 3 AC 641 at pp. 669, 670, Dos vs. Young (1845) 8 QB 63; 115 ER 798. The broad observation in Manamthe Rath vs. Girish Chandra Roy, 38 Cal. WN 763 at p. 770 (AIR 1934 Cal. 707 at p. 708) and Hemendra Nath vs. Jnanendre Prasanna, 40 Cal WN 115 at p. 117; (AIR 1935 Cal 702 at p. 704), that there is no rule of evidence by which one can presume the continuity of things backwards cannot be supported. The presumption of continuity weakens with the passage of time. Now for the presumption may be drawn both backwards and forwards depends upon the nature of the thing and the surrounding circumstances." It has already been stated above that the evidence of instances of observance of custom for a period of 20 to 25 years is sufficient to prove that the custom is ancient, certain and reasonable and it is for the other party to prove to the contrary. In the facts and circumstances of this case, it can be said that the various instances of adoption of married males having children in the community of Khatteeks do not mean that it was a new custom, but go to show that it was ancient, certain and reasonable which was in existence for the period since times immemorial. 15. In the result, the adoption of Deva, a married male having children and aged 20 to 23 years at the time of adoption, was as per the custom prevalent amongst the Khatteek community in Chhabada, Jhalawar etc. I do not find any force in this appeal and the appeal is dismissed with costs.