Point of law: unless there is a proof of custom or usage to take a boy in adoption who is more than 15 years old, the boy cannot be taken on adoption. Therefore, while answering substantial question of law above stated, the adoption taken as alleged by the appellant is not a valid adoption by applying the law as enshrined in clause (iv) of Section 10 of the Act.

JUDGMENT :

The respondents/plaintiffs have filed the present appeal under Section 100 of Civil Procedure Code (for brevity hereinafter called as “CPC”) challenging the judgment and decree passed in RA No.56/2019 dated 14.11.2019 by II Addl. Senior Civil Judge and JMFC., Dharwad, which has confirmed the judgment and decree passed in OS No.261/2010 dated 22.07.2019 passed by II Addl. Civil Judge and JMFCII, Dharwad. There is a concurrent finding of fact. Hence, the respondents have preferred the present appeal.

2. Brief facts of the case:

The respondents/plaintiffs have filed the suit for declaration to declare that the alleged adoption deed dated 05.05.2009 executed by the deceased Madiwalayya Meti in favour of appellant/defendant is null and void. The respondents are daughters of the deceased Madiwalayya Meti. The said deceased Madiwalayya Meti and his five brothers have an ancestral joint family landed properties. The marriage of both respondents/plaintiffs was performed by their deceased father Madiwalayya Meti and he died on 12.11.2009. Thereafter, the respondents have filed an application before the Tahasildar, Dharwad for entering their names in Revenue records being legal heirs of the deceased. But, their names have not been entered. On enquiry, the respondents learnt that the appellant/defendant has also filed application to enter his name in the Revenue records on the base of the adoption deed. Therefore, on the allegation that, the appellant/defendant to knock off the property, has created false adoption deed. Therefore, the respondents were constrained to file suit to declare that the adoption deed is null and void and also prays to declare that the respondents are legal heirs of the deceased Madiwalayya Meti.

3. The appellant/defendant had put appearance in the suit and filed written statement and contended that Madiwalayya Meti is uncle of the appellant/defendant and his wife left him long back and there were no issues to him. Therefore, the appellant/defendant was only care taker of the deceased Madiwalayya Meti. Hence, out of love and affection and service rendered by the defendant, the deceased Madiwalayya Meti had approached the genetic parents of the defendant for taking adoption of the defendant and after taking consent of the genetic parents of the defendant, the deceased had taken the defendant in adoption by performing religious ceremony and also executed registered Adoption deed in favour of the defendant in the presence of witnesses. Further stated that deceased Madiwalayya Meti died due to his old age, when he was under care and custody of the defendant. Therefore, contended that defendant had become absolute owner of the property of Madiwalayya Meti being adoptive son of Madiwalayya Meti.

4. Before the trial Court, the plaintiff No.1 herself is examined as PW1 and examined three other witnesses as PW.2 to PW.4, also produced 10 documents, which are marked as Ex.P1 to P10. The defendant was examined as DW.1 and got examined two other witnesses as DW.2 and DW.3 and also produced documents, which are marked as Ex.D1 and D2.

5. The trial Court has decreed the suit of the plaintiff by declaring the respondents as legal heirs of deceased Madiwalayya Meti and also declared that the registered Adoption deed dated 05.05.2009 executed by Madiwalayya Meti is illegal, null and void. The trial Court assigned the reason that as per Ex.P8 and P9 School certificates and Ex.P6Heirship certificate, it is proved that the respondents/plaintiffs are the legal heirs of the deceased Madiwalayya Meti. The Trial Court as per Section 50 of the Evidence Act held that the relationship of respondents/plaintiffs and deceased Madiwalayya Meti is proved as daughters and father as the other 3 witnesses PW.2 to PW4 have stated in their evidence and opinion is expressed by conduct as relationship is existed and these witnesses have special means of knowledge on the subject and hence held that the respondents are daughters of the deceased Mad