The court established that the adoption of a person of any age, even if older than the adoptive parent, was valid based on the custom prevailing in the area. This interpretation of the law was based on the definition of "custom" in the Hindu Adoptions and Maintenance Act and previous judgments and case law.

VAIDYA J.-The above Second Appeal was referred to a Division, Bench by Kania, J. on March 24, 1976-.

2. The Second Appeal arose out of a suit tried by the appellant, Haribail Dattu Sutar, on April 4, 1967, to get possession of the property described at Serial No.4 in para I and also to get possession of the remaining one half portion of the property at Serial No. 3, in para I of the plaint; and for an injunction restraining the defendants Nos. 1 and 2 from obstructing the plaintiff's Vahiwat in the property at Serial No.5 in the plaint.

3. The property described at Serial Nos. 3 and14 in para 1 consisted or agricultural lands. The property at Serial No.5 consisted of a house and an open site. These properties originally belonged to' Banubai widow of Tatoba Sutar. She had two daughters viz. the plaintiff and one Bhagirathi. Bhagirathi died long ago. Plaintiff Haribai, who was married, was staying with her mother during Banubai's lifetime, looking after the needs of Banubai. Banubai executed a Will on October 30, 1961. The Will is at Ex. 79. It was executed in favour of the plaintiff and the husband of Bhagirathibai, viz. Chandrappa. Chandrappa executed a registered release deed (Ex. 89) in her favour on October 10, 1965, in respect of his one half share in the property. Banubai died on February 25, 1962.

4. It was alleged in the plaint that in June 1963, the two defendants dispossessed her of the suit properties at Serial Nos. 3 and 4 and were threatening to dispossess her of the property at Serial No.5 viz. the house which was in her possession. Defendant No. 1 claimed to be the adopted son of Banubam under a registered adoption deed dated November 24, 1%1 (Ex. 82). According to the plaintiff, the adoption, even if Proved, was not valid, inasmuch as it was alleged to be made and the adoption deed was obtained by practising fraud and mis-representation on the old woman and also because the defendant No.1 was more than 15· years old at the time of the alleged adoption. On the basis of the said allegations, the plaintiff claimed/possession of properties at Item Nos. 1 and 4 and perpetual injunction in respect of Item No.5.

5. The defendants resisted the suit. They denied the execution of the Will. They further alleged that the Will must have been obtained by exercising fraud on Banubai and without letting her to know the nature of the document. According to them, they were brought up by the O'ld woman, as if they were her sons and out of love and affection she adopted defendant No.1, out of them, on November 24, 1961, at Karad, and registered the deed of adoption on the same day. She also executed an agreement, Exh 81, on the same day in favour of their mother Sitabai. They contended that by these two documents, Banubai had revoked the Will in favour of the plaintiff. They denied that any fraud was exercised on Banubai for obtaining the adoption deed. They contended that the adoption of defendant No.1, though he was more than 15 years of age was permissible under the custom prevailing amongst the community to which the parties belonged and also generally in Karad. Defendant No. 1 thus claimed title to the suit property as the adopted Son of Banubai, and submitted that the suit of the plaintiff was liable to be dismissed with costs.

6. The parties led oral and documentary evidence and on consideration of the said evidence, the learned trial Judge held that Banubai had validly executed the Will in favour of the plaintiff and Chandrappa; and Chandrappa had released his 1/2 interest in the property in the year 1965. He held that there was fraud practised on Banubai by the plaintiff and Chandrappa. He also held that the old woman adopted the defendant No.1 on November 24, 1961; but that the adoption was invalid because the defendant No. I was more than' IS years old at the time of adoption; and there was no custom duly proved by him validating such adoption.

7. In the result, he decreed the suit with costs by directing that th