The central legal point established in the judgment is the requirement to prove adoption strictly in accordance with the provisions of the Hindu Adoptions and Maintenance Act, 1956, including the conditions specified in Sections 10 and 11.

JUDGMENT :

Heard on admission and formulation of substantial question of law.

1. This second appeal is preferred under Section 100 of the C.P.C. by the appellants against the judgment and decree dated 09.01.2013 passed by the learned IInd Additional District Judge, Mahasamund (C.G.) in Civil Appeal No. 84-A/2011, whereby the judgment and decree passed by the learned Civil Judge Class-II, Saraipali, District Mahasamund (C.G.) in Civil Suit No. 268-A/2002 dated 28.04.2008 has been affirmed.

2. The facts of the present case are that the plaintiffs filed a civil suit for declaration of title, possession and permanent injunction with respect to lands comprising survey No. 242 admeasuring 4.55 hectares; survey No. 244 admeasuring 0.78 hectares and survey No. 256 admeasuring 0.90 hectare which was originally recorded in the name of Ramcharan. Ramcharan and Bakhariya were real brothers. Ramcharan died issueless. Brijlal and Siyalal were real brothers. The plaintiffs are sons of Brijlal, whereas the defendants are sons of Siyalal. The suit property was given to the father of the plaintiffs namely, Brijlal as he was adopted by Ramcharan and the adoption deed was executed on 18.01.1962. The defendants started interfering with the possession of the plaintiffs; therefore, the suit seeking aforestated relief(s) was filed.

3. The defendants filed their written statement and denied the plaint averments. They categorically stated that Ramcharan died issueless, therefore, Brijlal and Siyalal had stayed with Ramcharan since their childhood and the suit property was jointly possessed by Ramcharan and Siyalal during the lifetime of Ramcharan. After the death of Ramcharan, Brijlal and Siyalal mutually partitioned the property and they were in possession of their respective shares. It is further stated that the father of the plaintiffs namely, Brijlal was working as Patwari and taking advantage of the old age of Ramcharan, the adoption deed was executed and on the basis of the forged adoption deed, the plaintiffs recorded their names in the revenue records, which was challenged by the defendants before the Sub-Divisional Officer (Revenue), Saraipali and the order of mutation passed by the Tehsildar was set aside.

4. The learned trial Court vide judgment and decree dated 28.04.2008 dismissed the suit and recorded a specific finding that adoption deed Ex.-P/3 does not contain the signature of the mother of Brijlal and there was no consent of the mother, therefore, the adoption was not in consonance with Section 16 of the Hindu Adoptions and Maintenance Act, 1956. The learned trial Court further recorded a finding that at the time of adoption, the age of Brijlal was more than 15 years and he was a married person, therefore, in light of Section 10(iii) of the Hindu Adoptions and Maintenance Act, 1956, the adoption was not valid. The learned trial Court also held that the plaintiffs could not prove custom to establish that a married person can be adopted. The first appeal was filed by the plaintiffs and the learned first appellate Court specifically held that the year of birth of Brijlal according to transfer certificate Ex.-D/1 is 1930, whereas the adoption deed was executed in the year 1962 and at the time of adoption, Brijlal was 42 years of age, therefore, adoption deed is not valid.

5. Learned counsel for the appellants would submit that the learned Courts below committed an error of law in treating Ex.-P/3 as an adoption deed, whereas recitals of Ex.-P/.3 would show that it is an acknowledgement made by the father in relation to adoption. Brijlal (adopted son) has been living along with Ramcharan since his childhood, particularly soon after Brijlal's younger brother was born. They would further submit that according to Section 32(5) of the Indian Evidence Act, Ex.-P/3 is relevant. They would further argue that Brijlal was born on 09.01.1930, whereas his younger brother Siyalal was born on 01.07.1933 vide Ex.-D/1 and Ex.-D/2. In Ex.-D/1 the name of the fa