1994 Supreme(Bom) 42

IN THE HIGH COURT OF BOMBAY
(AURANGABAD BENCH)
S.S. Dani, J.
Nemichand Shantilal Patni.... Appellant.
Versus
Basantibhai w/o Nemichand Pahade.... Respondent.
Second Appeal No. 201 of 1990, decided on 21-1-1994.
Advocates appeared :
P.R. Deshmukh, for appellant.
K.G. Nawander, for respondent.

Headnote:Sections 59 and 61-See Hindu Adoptions and Maintenance Act, 1956, Section 10 (iii), (iv).

       HINDU ADOPTIONS AND MAINTENANCE ACT, 1955.

       Sections 10 and 11-Validity of adoption.

       30 years old married adoptee-Adopter mother only 19 years older than him-Its validity not proved by custom in community-No actual giving and taking of adoptee in adoption by parents or guardian concerned - Adoption in absence of compliance of conditions under Sections 10 and 11 be invalid.

       Section 10 (iii), (iv)-Evidence Act, 1872, Sections 59 and 61-A custom or usage-To he in continuity and uniformity to have force of law.

       Section 10 of the Hindu Adoptions and Maintenance Act prescribes four conditions for a valid adoption.

       The conditions (iii) and (iv) prescribe that person to be adopted should not be a married me and must not have completed the age of 15 years unless there is a custom or usage applicable to the parties permitting such adoptions. It is, therefore, clear that the first two conditions accept no exceptions while the subsequent conditions are subject to a contrary rule prevalent in the community by reason of a custom or usage.

       It is on the basis of this exception to conditions (iii) and (iv) that the plaintiff claims a valid and legal adoption inasmuch as, he had crossed the maximum age of 15 years and was also married at the time of this adoption. Section 3 of the said Act prescribes as to what is required to make an act or conduct amounting to custom or usage. According to it, it must be a rule which has obtained the force of law because of its open, continuous and uniform observation for a long time and such a rule should be no uncertain, unreasonable or opposed to any public policy.

       It is to be considered in the case at hand as to whether the plaintiff proves by sufficient evidence on record that there was a custom or usage in his community permitting the adoption of a married boy of more than 15 years in age and whether such a custom or usage was observed openly, continuously and uniformly hereby gaining the force of law. It is pertinent to note that such a case of custom or usage in the community and the adoption in pursuance of such a custom is conspicuously absent.

       It is not pleaded in the suit that there was any such custom or usage in his community providing exceptions to conditions (iii) and (iv) of Section 10 of the Act nor there is any whisper that the adoption of the plaintiff was made in conformity and in pursuance of such a custom or usage.

       Section 11 (iv) and (vi)-Essential ingredients of valid adoptions-Effect of violation of Section 11 (iv) and (vi).

       The plaintiff was admittedly 30 years old at the time of the adoption.

       It is further admitted by the plaintiff in para 16 of his evidence so also the adoption deed that K the adoptive mother, was 50 years old at the time of the deed. Admittedly, the adoption ceremony was performed on 11-5-1969 and the deed is dated 21-11-1970. It is, therefore, clear that at the time of the adoption, the plaintiff was 30 years old while the adoptive mother was 48 years and 6 months in age. As such, the adoptive mother K was older by 19 years than the plaintiff.

       There is therefore, the breach of condition (iv) as the adoptive mother was not at least 21 years older than the person adopted. These is also a legal bar against the valid adoption of the plaintiff raised by condition (vi) of Section 11 of the Act. There is absolutely no evidence in the case at hand that the plaintiff Nemichand was actually given and taken in adoption by the parents or guardian concerned as required by that condition. It is in the evidence of the plaintiff himself as well as his three witnesses that the plaintiff N himself sat on the lap of K and the adoption was effected. There is no whisper in the evidence that either the parents or the guardian of N actually gave him in adoption during their life time.

       This condition No. (vi) of Section 11 of the Act does not accept any exception or explanation in the form of a contrary usage or custom prevalent in the community. The only proviso is in respect of performance of Datta homa and it is therefore, clear that there may not be the performance of Dhtta homa but there must be actual giving and taking in adoption of the child that is essential to the validity of an adoption.

       The evidence in the case at hand not only falls too short but is totally absent on this count. Therefore, the conditions (iv) and (vi) or Section 11 of the Act are not at all complied with and as such, the adoption of the plaintiff cannot be upheld as valid.

       It may also lastly be mentioned that the conduct on the part of the plaintiff subsequent to the alleged adoption is also eloquent and both the courts have found that in respect of this alleged adoption, the plaintiff continued his actions and dealt with the properties not as a son of K but in his prior name as if there was no adoption at all. Both the courts below, therefore, rightly held that the plaintiff cannot be held to be an adopted son of K and he has been rightly denied his succession to the properties of K. The suit of the plaintiff for declaration as an adopted son of K has therefore rightly dismissed.

       VALIDITY OF ADOPTION

       See Hindu Adoptions and Maintenance Act, 1955, Sections 10 and 11.