The adoption of a boy over 15 years of age is void unless there is a custom or usage applicable to the parties which permits persons who have completed the age of fifteen years being taken in adoption.

JUDGMENT :- Plaintiff's suit for a declaration that the adoption made by him of the Defendant-Respondent is void, having been dismissed by the lower Court and confirmed in appeal by the learned District Judge, Kolaba, he has come in second appeal.

2. The appeal does raise a somewhat important point of Hindu Law on which the authorities of this Court at least do not appear to be unanimous. The question as to whether the adoption of a boy over 15 years of age is void, or valid being sanctioned by custom, arises in this way:

The Plaintiff who had taken the defendant in adoption on 12th February 1968 and got the adoption deed registered, alleged that according to the custom in his community adoption of a boy more than ten years of age at the date of adoption is not valid. As the defendant was 22 years of age at the date of the alleged adoption the said adoption is ipso facto bad in law and not binding on the plaintiff.

3. The short answer made by the defendant was that they are the members of Somavanshi Kshatriya Community in Alibag Taluka which has its own association presided over by a president elected by the members of the community. At the time of adoption, permission of the president is required to be obtained and there is a long standing custom sanctioning the adoption of persons of any age.

4. The learned trial Judge framed a number of issues which in my opinion did not catch the crux. He cast the burden of proving the invalidity of Defendant's adoption on the plaintiff. In the alternative he framed a somewhat general issue as to whether the adoption is invalid under the practice of the community of the parties, probably an issue which covered the plaintiff's principal contention that the custom sanctioned adoption of boys upto the age of 10 years. Both these issues were answered in the negative. The learned District Judge formulated a somewhat omnipotent point as to whether the adoption of the Defendant was not in compliance with the provisions of the Hindu Adoption and Maintenance Act and answered it in the negative. It is this finding which is impugned before me.

5. Before I turn to the controversial questions I may at the cost of repetition refer to certain material allegations in the pleadings of the parties. The Plaintiff, for getting rid of the defendant's adoption on the ground of age, made a two-fold attack. In the first instance he pleaded that there was a custom in the community of the parties that the age of the boy should not exceed 10 years at the date of adoption. In the altrenative took resort to S.10(iv) of the Hindu Adoptions and Maintenance Act, 1956 and averred further that as the defendant had completed more than 15 years of age, the adoption was void being not in compliance with law. To rebut these averments, the defendant pleaded another custom which according to him put no upper age limit on the age of the boy to be taken in adoption and denied the custom set up by the plaintiff. It is common ground that the adoption is evidenced by a registered deed of 14th February 1968 and at the date of the adoption the boy was aged 22 years i.e. in any event, more than 15 years. Therefore, this is a case in which two apparently contrary customs are set up, the plaintiff contending that the custom sanctioned adoptions of boys below 10 and the defendant pleading that there is no upper age limit. But on the question whether the adoption is valid or void by virtue of the provisions contained in the Act, both the parties rely upon the same provisions, the interpretation of which is a matter of debate and to which I will refer shortly. Before dwelling on the questions of law, I may refer in brief to the evidence adduced by the parties for proving the alleged custom.

6. The plaintiff did not enter the box, nor did he examine any witnesses. The defendant examined three witnesses viz. Laxman Yesu Gharat, Prabhakar Surekar and Keshav Thakur. Laxman Gharat claims to be the President of Pathare Kshatriva Pachkalshi Somavanshiya

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