Gujarat High Court
Patel Jayantibhai Mangaldas vs Patel Maheshkumar Joitaram on 3 February, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 4420 of 2023
With
CIVIL APPLICATION (FOR INTERIM RELIEF) NO. 1 of 2023
In R/FIRST APPEAL NO. 4420 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE NISHA M. THAKORE
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Approved for Reporting Yes No
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PATEL JAYANTIBHAI MANGALDAS & ANR.
Versus
PATEL MAHESHKUMAR JOITARAM & ORS.
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Appearance:
MS VIDHI J BHATT(6155) for the Appellant(s) No. 1,2
RULE SERVED for the Defendant(s) No. 1,2,3
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CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 03/02/2025
ORAL JUDGMENT
1. Heard Ms. Vidhi Bhatt, learned advocate for the
appellant and Mr. Shivam Dixit, learned Assistant Government
Pleader for the respondent no.3 State. Notice issued by this
Court upon the respondent nos. 1 and 2 has been duly served,
however they have chosen not to appear and contest the
present appeal.
2. Present appeal is directed against the impugned judgment
and order dated 27.6.2023 passed by the learned 3rd
Additional District Judge, Mehsana in CMA No.130 of 2022
whereby the application preferred by the present appellants
under Section 9 of the Hindu Adoption and Maintenance Act,
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1956 came to be dismissed.
3. In nutshell the case of the appellant is as under:
3.1. The respondent no.1 has married to one Ilaben Amrutbhai
in the year 1993 and out of the aforesaid wedlock
Vishvaskumar Maheshkumar Patel -respondent no.2 herein
was born on 19.2.1994. In the meantime, on 20.07.1994 the
mother of the respondent no.2 had expired. After the death of
mother of respondent no.2, the appellant who is otherwise
related by blood to the deceased mother of respondent no.2
intended to become the guardian of respondent no.2. The
respondent no.2 was adopted by the appellant and raised as
their own child. The appellant who were married to each
other had no child of their own. In the year 1996 the
respondent no.1 had remarried and has own children out of
second marriage. It is the case of the appellant that the
respondent no.2 has been raised and taken care of as their
own child. The rituals with regard to adoption has also been
performed adopting the respondent no.2, however later on
17.4.2016 the appellant and the respondent herein had
entered into registered adoption deed so as to legally enable
the appellant to adopt the respondent no.2. It is the case of
the appellant that since in the official document of respondent
no.2, name of respondent no.1 continued as father of
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respondent no.2., the need arose for the appellant to approach
the Court of learned District Judge, Mehsana by preferring the
application under Section 9 of the Hindu Adoption and
Maintenance Act, 1956 thereby seeking declaration that they
have become the guardian and parent of the respondent no.2
and seeking consequential relief to reflect name of appellant
no.1 as father of the respondent no.2 in the official document
viz. birth certificate, Aadhar Card, Educational Certificate of
degree and other such official documents. The learned Judge
without appreciating the merits of the case in light of the legal
position as relied upon by the learned advocate for the
appellant has proceeded to dismiss the application by
impugned judgment and order dated 27.6.2023. Being
aggrieved and dissatisfied with the aforesaid order, the
appellants have approached this Court by way of present
appeal under Section 96 of the Code of Civil Procedure, 1908.
4. Learned advocate Ms. Vidhi Bhatt, for the appellant at the
outset, has invited attention of this Court to the facts of the
case, and the findings recorded by the learned Judge in
refusing to entertain their application under Section 9(5) of
the Hindu Adoption and Maintenance Act, 1956. According to
her, the learned Judge committed serious error while applying
clause (iv) of section 10 of the Act of 1956, in light of the
evidence brought on record. As regards the compliance of
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condition of existence of customary provision in their caste
and adoption of male child beyond 15 years is concerned, she
had pointed out that the learned Judge ought to have
appreciated that the registered adoption deed dated 17th
February 2016 was produced on record. Under Section 16 of
the Hindu Adoption and Maintenance Act, 1956, there is a
presumption in law that a registered adoption deed is a valid
document. The natural guardian of respondent no.2 i.e.
Respondent no.1 was party to the adoption deed and had also
deposed before the learned Judge regarding his willingness in
giving his son in adoption. The glance of the findings and
reasons recorded by the learned Judge has failed to discuss
with regard to the aforesaid adoption deed executed by the
parties. She had therefore submitted that the impugned order
is passed without considering the documentary evidence
produced before the Court and is arrived upon on surmises
and conjectures, which is required to be quashed and set
aside. She had further invited attention of this Court to the
evidence of the parties, as well as of the witnesses at Exh.6, 7
and 9 and 16, which clearly establishes the condition as
regards existence of custom practice in Patel community to
adopt a person who is above 15 years of age. She had further
pointed out that there was no rebuttal to the aforesaid oral as
well as documentary evidence produced before the Court.
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Neither there was any reason for the learned Judge to
disbelieve aforesaid witnesses in absence of their credibility
being doubted or challenged. She had therefore submitted
that sufficient material had been brought on record, satisfying
the Court about compliance of condition as required to be
fulfilled as per clause (iv) of section 10 of the Hindu Adoption
and Maintenance Act, 1956
4.1. On the legal aspect, the learned advocate had referred to
the official website of the Collectorate Mehsana. The history
of the constitution of District Mehsana suggests that Mehsana
was initially established by Masaji Chawda of Chhabra
Dynasty in the year Vikram Sampath 1414. Later on Gaikwad
established its main headquarters in Mehsana in 1902. After
Independence in 1947, it was merged with the Union of India
and it was part of Bombay State later on in 1960 with the
division of Bombay State into Maharashtra and Gujarat ,
Mehsana became part of the State of Gujarat. She had further
pointed out that in Mulla's Hindu law, 14th edition at page
550 as referred to in the case of Kodi Rama, Pa Alias
Shirke, dead by his heirs and legal representatives, and
another versus Narayan Kodi Ba Pa, 1991 (2)SCC 218, it
is held that in the Bombay State, a person may be adopted at
any age, though he may be older than the one who adopt, and
though he may be married and have children, the custom is
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judicially recognised in the Bombay State as regards adoption
of a child at any stage. She had therefore submitted that the
custom of adopting a major child beyond 15 years is judicially
recognised in the Bombay State.
4.2. Apart from the aforesaid submissions, learned advocate
had relied upon the judgement of this Court in the case of
Mukesh Kumar Govindbhai vs. Assistant Collector and
others 2016 SCC Online (GUJ) 9029, the learned Judge of this
Court while examining the issue as to whether he was adopted
son and whether it was valid or not and the issue as to
whether a Patel community person can be adopted as a son of
Sadhu community person, after taking into consideration
Section 10 of the Hindu Adoption and Maintenance Act, 1956
reiterated the legal position that the prohibition contained in
clause (iv) of Section 10 against adoption of a person who has
completed the age of 15 years has no meaning in relation to
male persons adopted in the territories which were comprised
in the former State of Bombay which include the District of
Satara from where the appeal arises. The Court further held
that the expression "custom " and "usage" as defined is
inclusive. Section 3 of the said act include not only customs
and usage in the ordinary sense, which have obtained the
force of law among Hindus in any local area, tribe,
community, group or family, but also text, who is an
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interpretation of Hindu law, which have been continuously
and uniformly observed and have obtained the force of law
amongst Hindus in any local area, tribe, community, group or
family. The reliance was also placed on the judgement of
Hon'ble Supreme Court, in the case of Atluri
Brahmanandam, dead through legal representatives
versus Anne Sai Bapuji reported in 2010(14) SCC 466
wherein the Hon'ble Supreme Court has held that the decision
of High Court, recognising existence and validity of a custom
in the State gets blinded into law and is not required to be
proved. She has therefore submitted that the exception to
section 10 (iv) is satisfied and since the custom and adoption
is also recorded in register deed, Court can presume under
Section 16 that adoption deed has been made in compliance
with the provisions of Act. She has therefore submitted that to
quash and set aside the impugned order and to grant prayers
made in their application preferred under section 9(5) of the
Hindu Adoption and Maintenance Act, 1956.
5. Having heard learned advocate appearing for the applicant
and perused the impugned judgement and order passed by
the learned judge in light of the legal position as well as the
documentary and oral evidence produced on record, which is
placed for consideration before this court . The findings and
reasons assigned by the learned Judge while not entertaining
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the application preferred by the applicants under section 9(5)
of the Act of 1956 is essentially challenged on the ground that
the condition as envisaged in clause (iv) of section 10 has not
been fulfilled in absence of any cogent evidence being brought
on record to establish that custom practice prevailed to adopt
a child above 15 years in light of section 10 of the Act of 1956
in the Patel community. Thus, the only question which falls for
consideration for this Court in the present appeal is :
"whether the learned Judge committed any error in arriving at
a conclusion that no evidence has been brought on record by
the applicant to establish that there exist a custom practice in
the Patel community, which permits the adoption of a child,
having not completed the age of 15 years as provided under
clause (iv) of section 10 of the Hindu Adoption and
Maintenance Act, 1956.?"
6. To appreciate the controversy involved, it would be
appropriate to look into the relevant provisions. Section 10
and Section 16 of the Hindu Adoption and Maintenance Act,
1956 of which reference has been made reads as under:
Section 10: Persons who may be adopted.--
No person shall be capable of being taken in adoption
unless the following conditions are fulfilled, namely:--
(i)he or she is a Hindu;
(ii)he or she has not already been adopted;
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(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.
Section 16: Presumption as to registered document
relating to adoption.--
Whenever any document registered under any law for
the time being in force is produced before any court
purporting to record an adoption made and is signed by
the person giving and the person taking the child in
adoption, the court shall presume that the adoption has
been made in compliance with the provisions of this Act
unless and until it is disproved."
5.1. The aforesaid provisions fell for consideration before the
Hon'ble Supreme Court in the case of Atluri Brahman Nanda
(supra), the court observed as under:
"12. We are concerned for the purpose of this case with
clause (iv) of Section 10 which provides that a person to
be adopted should not have completed the age of 15
years. But there is also an exception provided therein to
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the aforesaid required qualification which provides that
if there is a custom or usage applicable to the parties
permitting persons who have completed the age of 15
years being taken in adoption, such a person could also
be validly adopted. On the other hand, the effect and the
implication of Section 16 of the Act is that if there is any
document purporting to record an adoption made and is
signed by the person giving as well the person taking
the child in adoption is registered under any law for the time
being in force and if it is produced in any Court, the
Court would presume that the adoption has been made
in compliance of the provisions of the Act unless and
until it is disproved.
13. There is no denial of the fact in the present case that
the respondent was more than 15 years of age at the
time of his adoption. But the respondent has relied upon
the exception provided in section 10 (iv) and has proved
by leading cogent and reliable evidence like Ex. A-8 that
there is a custom in the "Kamma" community of Andhra
Pradesh for adoption of a boy even above the age of 15
years. Therefore, the aforesaid exception which is
engrafted in the same part of the provision of 10 of the
Act was satisfied. Since the aforesaid custom and
aforesaid adoption was also recorded in a registered
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deed of adoption, the Court has to presume that the
adoption has been made in compliance with the
provisions of the Act, since the respondent has utterly
failed to challenge the said evidence and also to
disprove the aforesaid adoption.
14. Reference has also been made to a Division Bench
decision of the Andhra Pradesh High Court reported in
1964 Andhra Weekly Reporter p.156. In the said
decision, the Division Bench has recognized that there is
a custom among the members of the "Kamma" caste to
adopt a boy of more than 15 years old and that such
custom is valid. The said decision rendered by a Division
Bench in 1964 has stood the test of time and has
remained binding till date.
15.In the case of Ujagar Singh v. Mst. Jeo reported in
AIR 1959 SC 1041, this Court has held that the ordinary
rule is that all customs general or otherwise have to be
proved, but under Section 57 of the Evidence Act, 1872
nothing need to be proved of which the Court can take
judicial notice. It was also held that when a custom has
been repeatedly recognized by Courts, it is blended into
the law of land and proof of the same would become
unnecessary under Section 57 of Evidence Act, 1872.
16. The aforesaid decision is squarely applicable to the
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facts and circumstances of the present case. The Andhra
Pradesh High Court has recognized such a custom
among the "Kamma" community of Andhra Pradesh of
taking in adoption of a person even above the age of 15
years of age and has held the same to be legal and
valid."
5.2. Thus, the court while interpreting the aforesaid
provisions, observed that for the purposes of clause (iv) of
Section 10, which provides that a person to be adopted should
not have completed the age of 15 years, an exception is
carved out, which provides that if there is a custom or usage
applicable to the parties, permitting persons who have
completed the age of 15 years being taken in adoption, such a
person can be validly adopted. Aforesaid ruling also examines
the effect and implication of section 15 of the Act and held
that if there is any document to record an adoption made and
signed by the person giving as well as person taking the child
in adoption and is registered under any law for the time being
in force and if it is produced in any Court, the Court would
presume that the adoption has been made in compliance with
the provisions of the Act, unless and until it is disproved.
7. Applying the aforesaid legal principles in the facts of the
case, admittedly, the respondent no.2 is above 15 years of age
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and respondent no.1 being the father of respondent no.2 and
natural guardian has agreed of giving his child -respondent
no.2 to the applicants who are otherwise the real uncle and
aunt of the deceased mother of respondent no.2 and wife of
respondent no.1. The parties belong to Patel community and
are residing in District Mehsana in Gujarat. As rightly pointed
out by the learned advocate for the applicant, it is an admitted
fact that Mehsana was initially forming part of erstwhile State
of Bombay, which was later on upon division of State of
Maharashtra and State of Gujarat, had became one of the
districts of State of Gujarat. In light of the aforesaid
undisputed facts and the decision of the Bombay High Court
in the case of Anirudh Jagdev Rao versus Baba Rao Er
Baji reported in AIR 1983, Bombay 391 their exist the
custom of adopting a child beyond age of 15 years in the State
of Bombay, which include present District Mehsana. It was
held by the Court that Hindu law in India is derived from
various text and Commentary, some of which have by custom
held the field in various parts of India. As rightly noticed by
the learned single Judge of this Court in the case of Mukesh
Kumar Govindbhai (Supra), the expression, custom and
usage as defined in clause(a) of section 3 of the said Act of
1956 includes not only customs and usage in ordinary sense,
but includes customary practices which have obtained the
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force of law among Hindus in any local area, tribe, group or
family, but also texts, rules and interpretation of Hindu law,
which have been continuously and uniformly observed and
have obtained the force of law among Hindus in any local
area, tribe, community, group or family.
8. As regards the custom prevailing in the Patel community is
concerned, in light of the decision of this court in the case of
Mukesh Kumar Govind Bhai (Supra), the Court has
recognised the customary practice of adopting the male child
who has completed age beyond 15 years, in light of the
exception as provided under clause (iv) of Section 10 of the
Hindu Adoption And Maintenance Act, 1956. As held by the
Hon'ble Supreme Court in the case of Atluri
Brahmanandam (supra), the recognition of the aforesaid
custom prevailing in the state, as well as in the Patel
community has been accepted by judicial pronouncement and
such decision which has remained unchallenged are binding
to this Court as held by the Hon'ble Supreme Court. The
custom gets blended into law and proof of fact becomes
unnecessary under Section 57 of the Evidence Act, 1872. In
view of Section 57 and 48 of the Evidence Act, 1872 such
customary practices once became proof of the aforesaid
customs having blended into law by virtue of judicial notice,
no other proof thereof is required. Even otherwise in view of
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section 16 of the Act of 1956 and looking to the contents of
the adoption deed, this court has reason to presume that
adoption has been made in compliance with the provisions of
the Act.
9. For the foregoing reasons, the learned judge committed
serious error in ignoring the aforesaid legal position and
applying the same in the facts of the case. In the result, the
impugned judgement and order dated 27.06.2023 passed by
the learned 3rd Additional District Judge, Mehsana in CMA
No.130 of 2022 is therefore quashed and set aside. The appeal
is allowed. The application preferred by the original
applicants under section 9(5) of the Act of 1956, hereby
stands allowed. Records and proceedings be sent back forth to
the concerned trial court.
10. In view of disposal of the appeal, no orders are required to
be passed in connected Civil Application and accordingly
stands disposed.
(NISHA M. THAKORE,J)
RATHOD KAUSHIKSINH
