The main legal point established in the judgment is the requirement to prove the validity of adoption under the Hindu Adoption and Maintenance Act, 1956, including the consent of the mother and the customs and usages prevailing in the community.

ORDER :

Vivek Rusia, J.

1. Appellants/defendants have filed this appeal being aggrieved by the judgment and decree dated 26.02.1993 passed by 1st Additional District Judge, Ujjain in Civil Suit No. 4A/1977 whereby the suit filed by respondent/plaintiff has been partly decreed.

Facts of the case are as under:

2. Respondent (hereinafter referred to as "plaintiff") filed the suit for declaration of possession, title, permanent injunction, and mesne profit against the appellant (herein after referred to as "defendants"). According to the plaintiff, his uncle late Late Jagannath was the owner of various agricultural lands and two houses. The description of all the land has been given in para 1 and the description of two houses has been given in para 2(a) and (b) of the plaint (hereinafter referred to as 'suit property'). According to the plaintiff, Late Jagannath s/o Kuvarji was the cousin brother of his natural father Kanhaiyalal. Late Jagannath, who had no issue, therefore, he adopted him on 07.06.1968 as per the customs prevailing in the Rajput Community. Thereafter, late Late Jagannath executed a registered adoption deed dated 25.01.1969 in the presence of two witnesses. After some time, some dispute arose between him and Late Jagannath and he started living with the defendants and sent a notice dated 18.06.1970 to him for withdrawing the adoption as well as cancelling the adoption deed. Thereafter, he got published a notice on 29.06.1970 in a daily newspaper to that effect, however, in both the notice and the news given in the newspaper he admitted that the plaintiff became son by way of adoption. The plaintiff, as well as Late Jagannathji, were belonging to the Rajput Community and as per the customs and usage prevailing in the Mewar Rajput community, there is no bar of adopting any person aged more than 15 years despite he being married as well, therefore, his adoption by Late Jagannath is valid and under section 15 of the Hindu Adoption and Maintenance Act, 1956 such an adoption cannot be cancelled. The plaintiff further contended that by virtue of adoption he became a member of the Joint Hindu Family of Late Jagannathji and a co-parcener. Late Jagannath had inherited the ancestral property; therefore, by virtue of adoption he had got the equal right and title over the ancestral property i.e., the suit property. Late Jagannath had not only illegally cancelled the adoption deed vide notice dated 08.06.1970 but also sold the suit properties by way of sale deeds in favour of the defendants. Vide sale deed dated 11.11.1968 he sold the land survey No. 69, area 16 bigha 5 biswa in favour of defendants No. 2 and 3 for a sale consideration of Rs. 6,000/-. Thereafter, vide two sale deeds dated 01.02.1969 he sold the land mentioned in para 2(a) and the land mentioned in para 1. Thereafter, vide another sale deed dated 24.02.1971 he sold the house mentioned in para 2(b). These cumulative acts of late Late Jagannath gave him the cause of action for filing the present suit against the defendants. Plaintiff did not implead Late Jagannath as defendant despite he was alive at the time of filing suit.

3. Initially, the plaintiff filed the suit as an indigent person on 02.07.1970. Learned Civil Judge obtained a report about the properties and the income of the plaintiff and after due inquiry vide order dated 09.01.1976 plaintiff has been denied the permission to file the suit as an indigent person and directed him to pay the ad-valorem Court fees. The plaintiff paid the ad-valorem Court fees and vide order dated 01.04.1977 the suit was registered as Regular Civil Suit. The defendants filed the written statement denying the averments made in the plaint. On the basis of the pleadings, learned Additional District Judge framed 14 issues for adjudication. The issue Nos. 12, 13and 14were framed in respect of proper valuation of the suit and payment of ad-valorem Court fees. Vide order dated 07.09.1977 the learned A.D.J. has decided all the aforesaid th