The central legal point established is that under Section 10(iv) of the Hindu Adoptions and Maintenance Act, 1956, a person must not have completed the age of fifteen years to be capable of adoption, unless there is a custom or usage permitting it.

JUDGMENT :

A.K. Rath, J.

Plaintiff is the appellant against an affirming judgment in a suit for declaration that defendant no.2 is not the adopted son of defendant no.1.

2. The case of the plaintiff is that Urmila and Radhika-defendant no.1 are the widows of late Kanhei Negi. Kanhei died 25 to 30 years back. After death of Kanhei there was a partition between the widows. The property was divided into two equal shares between them. Kanhei had no issue. His first wife, Urmila adopted the plaintiff on 2.1.75, who was 14 years of old. Thereafter the plaintiff has been treated as the adopted son of Kanhei in all official records. The adoptive mother, Urmila executed a registered deed of adoption on 3.1.75 in presence of the witnesses. It is further pleaded that defendant no.2 is not the adopted son of defendant no.1. When defendant no.2 asserts to possess the land of defendant no.1, the same creates a cloud of suspicion in the mind of the plaintiff over the title of the property. With this factual scenario, he instituted T.S.No.22 of 1991 in the court of the learned Subordinate Judge, Sonepur seeking the relief mentioned supra.

3. The defendants entered contest and filed a joint written statement contending inter alia that plaintiff is not the adopted son of Urmila. There was no giving and taking ceremony. On 2.1.75 plaintiff was 15 years of old. Thus, the adoption, if any, is null and void. The plaintiff was never treated as the adopted son of Kanhei by any person or in any official record. It is further pleaded that the plaintiff has no legal interest in the property of defendant no.1 or Urmila. He, being a stranger, has no locus standi to challenge the status of the defendants and as such the suit is not maintainable.

4. Stemming on the pleadings of the parties, the learned trial court struck five issues. Both the parties led evidence, oral and documentary, to substantiate their case. The learned trial court came to hold that adoption of the plaintiff by Urmila is in violation of conditions laid down under Section 10(iv) of the Hindu Adoptions and Maintenance Act, 1956. The adoption is void. The same does not create any right, interest or status in the adoptive family. The plaintiff, who is stranger to the family and to the property left by Kanhei or succeeded by Urmila or defendant no.1, has no authority to challenge that defendant no.2 is the adopted son of defendant no.1. Held so, the learned trial court dismissed the suit. The plaintiff unsuccessfully challenged the said judgment and decree before the learned Additional District Judge, Sonepur in Title Appeal No.40/33 of 94-99, which was eventually dismissed.

5. The Second Appeal was admitted on the following substantial questions of law enumerated in ground nos.1, 2 & 3 in the appeal memo. The same are:-

“1. Whether the finding of the learned courts below that the plaintiff’s adoption was invalid because he was more than 15 years old at the time of alleged adoption is sustainable in view of the unimpeachable evidence of all the P.Ws. the aged mentioned in the deed of acknowledgement (Ext.1) and the cause title of the plaint coupled with explanation given by P.W.4?

2. Whether the defendant no.1 has got any right to challenge the adoption made by her co-widow and if such plea is barred by law of limitation?

3. Whether the bald statement of P.W.4 in cross examination relating to the date of birth of the plaintiff is sufficient to discard the evidence of all the P.Ws. and the documentary evidence adduced by the plaintiff?”

6. Heard Mr. Budhiram Das, learned Advocate for the appellant. None appeared for the respondents.

7. Mr. Das, learned Advocate for the appellant submitted that Kanhei Negi had two wives, namely, Urmila and Radhika. After death of Kanhei his first wife, Urmila took the plaintiff in adoption. Defendant no.2 is not the adopted son of defendant no.1. At the time of adoption the plaintiff was 14 years old. The adoption was acknowledged by a registered document dated 3.1.75.