1 (SA 236 of 2010) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 236 OF 2010 Radhabai @ Godabai Tayappa Shinde @ Parit ...Appellant (Org. Plaintiff) Vs. Shashikant Laxman Varape & Ors. ...Respondents. (Org.Defendants) ----- Mr.S.S. Kanetkar for Appellant ----- CORAM: V.M. KANADE J. DATED: 28TH JANUARY, 2011 P.C. 1. Heard the learned counsel appearing on behalf of the Appellant. 2. The Appellant is the Original Plaintiff. He filed the suit for declaration, possession and decree of mesne profits (for the sake of convenience the parties shall be referred to as “the Plaintiff and the Defendants”). The father of the Plaintiff passed away on 25.5.1940 leaving behind widow Kasabai and the Plaintiff inherited the suit property and since then they were having 2 (SA 236 of 2010) possession and were enjoying the suit properties. It was also contended that their names were mutated in the revenue records of the suit property. It was contended that though the Defendants were not concerned with the suit properties, they were making an attempt to enter their names in the mutation record and, as a result, the mutation entry No. 1926 was cancelled and the names of the heirs of deceased Kasabai were not brought on record. It was alleged that the Defendant No.4 was illegally obstructing the Plaintiff’s possession and cultivation. It was then alleged that the Plaintiff being the daughter of deceased Kasabai and Raghu, she was entitled for the possession and enjoyment of the suit property. The suit was filed in the year 1994. The Defendants filed their written statement and it was contended by the Defendants that the husband of Malanbai -Defendant No.1(b) was taken in adoption by the mother of the Plaintiff by a registered adoption 3 (SA 236 of 2010) deed in 1952 and, therefore, it was contended that the Plaintiff had no any right of declaration and/or possession of the suit properties. The Trial Court dismissed the suit of the Plaintiff and the District Court also dismissed the appeal filed by her. 3. Shri Kanetkar, the learned counsel appearing on behalf of the Appellant contended that the adoption of Laxman was prohibited in view of the section 480 of the Old Hindu Law and, therefore, the adoption deed itself was invalid. It is submitted that this fact was not considered by both the Courts below and, therefore, the finding recorded by both the Courts is liable to be set aside. It is submitted that admittedly, Laxman was the sister of her mother’s sister i.e. son of her maternal aunt and as such, he is within the prohibited degree, as per section 480 and, therefore, could not have been taken into adoption. It was, therefore, submitted that the adoption itself is illegal and the Defendants could 4 (SA 236 of 2010) not claim title to the said properties. 4. In my view, the said submissions made by the learned counsel for the Appellant cannot be accepted. The Trial Court had framed the specific issue regarding adoption of the Defendant No.1-Laxman and had considered the evidence on record and had held that the adoption deed was valid. The Appellate Court also observed that the Defendants belong to 'Parit' community which is a ‘Kshudra’ community and after taking into consideration the judgment of the Privy Council referred therein, observed that by custom, it was possible to adopt the daughter's son and, therefore, confirmed the finding of the Trial Court. 5. It is a well settled position in law that for the purpose of proving custom either evidence of existence of the custom since immemorial antiquity has to be proved and has brought on record or if in earlier judgments of the Higher Courts have held that such 5 (SA 236 of 2010) custom exists then reliance can be placed on these judgments. In the present case, both the Courts below, therefore, have taken into consideration the judgment of the Privy Council and have held that in the case of ‘Kshudra’ Community, it is valid to take in adoption the daughter's son. In my view, therefore, it is not possible to interfere with the concurrent finding of fact recorded by both the Lower Courts. In my view, therefore, no substantial question of law is raised in the Second Appeal. Second Appeal, therefore, is dismissed. (V.M. KANADE J.)