Salekh Chand v. Satya Gupta
Supreme Court of India, 4 March 2008, 2 judges
The Court dismissed the appeal, upholding the High Court's finding that the plaintiffs had not proved a custom in the Vaish community of Hapur permitting adoption of a sister's son; a party setting up a custom must prove it.
Facts
The plaintiffs, Om Prakash and Salekh Chand, sued for partition of a house that had belonged to Pares Ram, claiming a 1/4th share bought from Shanti Devi, widow of Chandra Bhan. They said Jagannath, a son of Pares Ram, had adopted Chandra Bhan, his sister's son, in about 1928 or 1929 under a custom of the Vaish community of Hapur. The defendants, including Satya Gupta, denied the adoption and said that under Hindu custom a sister's son cannot be adopted. The trial court dismissed the suit, finding neither the custom nor the adoption proved. The first appellate court reversed and decreed the suit. In second appeal the Allahabad High Court held that no custom permitting adoption of a sister's son was proved and allowed the appeal. Salekh Chand appealed to the Supreme Court.
Questions before the Court
- Since the adoption took place before the Hindu Adoptions and Maintenance Act, 1956, what law governs its validity?
- Did the plaintiffs prove a custom in the Vaish community of Hapur permitting adoption of a sister's son?
- What must a party setting up a custom plead and prove?
What the Court held
- As the alleged adoption took place before the Hindu Adoptions and Maintenance Act, 1956 was enacted, the old Hindu law applies to it.
- A party setting up a custom must allege and prove it. Custom cannot be extended by analogy, deduced from another custom or enlarged by parity of reasoning; it is a matter of fact established inductively.
- A custom must have been acted upon for so long and with such invariability that it has by common consent become the governing rule of the locality or community. A custom against the written texts of Hindu law must be proved by clear and unequivocal evidence.
- For a valid adoption the person adopting, the person giving and the person adopted must each have the legal capacity required; satisfying one condition is not enough.
- On the evidence, PW 1 and PW 2 said nothing about the custom, PW 3 had no personal knowledge of it, and a solitary instance cannot amount to long usage. The custom was not proved and the appeal was dismissed.
Why it matters
The judgment collects the rules on proof of custom in Hindu law: custom varying the general law must be pleaded and proved by clear evidence of long, invariable usage, cannot be extended by analogy, and a single instance does not prove it. It also restates that a valid adoption requires capacity in the adopter, the giver and the person adopted. It applies these rules to a pre-1956 adoption governed by the old Hindu law.
In the Court's words
Copied from the official judgment; each passage links to its page.
“It is incumbent on party setting up a custom to allege and prove the custom on which he relies. Custom cannot be extended by analogy. It must be established inductively and not by a priori methods. Custom cannot be a matter of theory but must always be a matter of fact and one custom cannot be deduced from another. It is a well established law that custom cannot be enlarged by parity of reasoning.”
“It may also be pointed out that the settled law is that for a valid adoption, not only the person adopting should be capable of lawfully taking in adoption; but the person giving must be capable of lawfully giving in adoption and the person adopted must be capable of being lawfully taken in adoption. It is necessary that all these three conditions should be satisfied and that it is not sufficient that one of them be satisfied.”
“So far as the evidence adduced is concerned, reliance was placed on the evidence of three witnesses. As noted above PW 1 did not speak about any custom. Similarly, PW 2 did not speak about any custom though he claimed to be present at the time of adoption. The present appellant was PW 3. He is outsider of the family. He also accepted that he did not have personal knowledge about the custom. He only stated that PW2 told him about the custom.”
Provisions interpreted
- Section 3(a), Hindu Adoptions and Maintenance Act, 1956 (definition of custom and usage)
- Custom and adoption under the old (uncodified) Hindu law
Case and bench
- Parties
- Salekh Chand (Dead) by Lrs v. Satya Gupta
- Case
- Civil Appeal of 2008 (number left blank in the file), arising out of Special Leave Petition (Civil) No. 1380 of 2002
- Decided
- 4 March 2008
- Bench
- Dr. Arijit Pasayat, P. Sathasivam
- Opinions
- Judgment delivered by Dr. Arijit Pasayat, J. for a bench of two judges. No separate opinion appears in the file.
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