The main legal point established in the judgment is the validity of an Adoption Deed under the Hindu Adoptions and Maintenance Act, 1956, and the significance of custom or usage in permitting adoption of a child beyond the age of 15 years.

ANIL KSHETARPAL, J.

1. The appellant-plaintiff is in Regular Second Appeal against the concurrent findings of fact arrived at by the Courts below dismissing the suit filed by the plaintiff.

2. Devi Singh had four sons namely Rajender, Sube Singh, Joginder and Narender and two daughters namely Sumitra and Santosh. Dispute in the present case is with regard to the estate of Narender one of the son of Devi Singh who died unmarried and issueless on 08.07.2005. Late Sh. Narender had adopted Parveen @ Manjeet son of brother Rajender through registered Adoption Deed dated 26.05.2005 which is Ex.D1 on the trial Court record.

3. It is the case of Sube Singh that such Adoption Deed is not valid for two following reasons:-

(i) Parveen @ Manjeet was beyond the age of 15 years on the date of adoption.

(ii) Specific custom has not been pleaded and, therefore, defendants cannot be permitted to take advantage of the custom.

4. The learned trial Court dismissed the suit on the ground that Parveen is not proved to be more than 15 years of age.

5. The First Appellate Court although recorded a finding that Parveen was born on 20.05.1990 and since Adoption Deed is dated 26.05.2005, hence he was beyond the age of 15 years, however, the learned First Appellate Court has returned a finding that the parties are Jat and they are governed by custom. It has further been held that custom has been pleaded. Even natural father of Parveen namely Rajender has appeared in the witness box as DW2 and has stated that there is a custom amongst Jat permitting adoption of a son beyond the age of 15 years. The First Appellate Court therefore dismissed the appeal filed by the plaintiff.

6. Counsel for the appellant has made three submissions:-

1. In the Adoption Deed, Parveen @ Manjeet has been shown as 14 years old whereas he was more than 15 years old.

2. In the Adoption Deed, no custom has been specifically referred to, therefore, it was not permissible for the defendants to plead and prove that adoption was under the custom.

3. Counsel for the appellant has further submitted that since no specific custom was pleaded to the effect that amongst Jats of that area, there is a custom of adopting a child more than 15 years, therefore, the finding of the Court is erroneous.

7. Section 10(iv) of the Hindu Adoptions and Maintenance Act, 1956 reads as under:-

“10. Persons who may be adopted-

(i) to (iii) xxx xxx xxx

(iv) he or she has not completed the age of fifteen years, 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.”

8. Reading of Section 10(iv) of Hindu Adoptions and Maintenance Act, 1956 establishes that in ordinary circumstances, a child beyond the age of 15 years cannot be adopted. However, if there is a custom or usage applicable to the parties which permits a persons to be given in adoption even beyond the age of 15 years, the same is valid.

9. In this case, in the written statement, it was pleaded by the defendants that the parties are governed by custom. In fact, it was stated that the parties to the suit are governed by customary law. It was further pleaded while replying to para 6 (a) of the plaint that adoption of defendant No.1 who is more than 15 years of age is valid under custom. It was further stated that the parties are Jats of Village Khanpur Khurd part of erstwhile District Rohtak and their livelihood is agriculture and they are governed by customary law of District Rohtak in the matter of adoption. It was further pleaded that as per the customs amongst Jats in District Rohtak, a child more than 15 years can be adopted. Therefore, the arguments of learned counsel, that specific custom has not been pleaded, is erroneous.

10. It has further been contended by the learned counsel for the appellant that in the Adoption Deed, wrong age has been given and no custom has been mentioned. A careful reading of the Adoption Deed would show that approximate age of the ch