Under the Hindu Adoption and Maintenance Act, 1956, customary law in Maharashtra permits the adoption of individuals over 15 years of age, negating the need for evidence of specific customs.

1. The legal representatives of original plaintiff – Kashibai w/o Dadarao Nimbalkar, who died during pendency of first appeal, have preferred the present second appeal against judgment and decree dated 15/07/1992 passed by the 2nd Additional District Judge, Osmanabad (hereinafter referred to as ‘the learned first appellate court’) in RCA No.136 of 1984 whereby the learned first appellate court, by allowing the appeal, had set aside the judgment and decree dated 06/03/1989 passed by the 2nd Join Civil Judge (J.D.), Osmanabad (hereinafter referred to as ‘learned trial court’) in RCS No. 65 of 1980.

2. Brief facts giving rise to the present appeal are as under : The original plaintiff – Kashibai had filed the suit for cancellation of adoption deed by which she had adopted present respondent No.1 i.e. original defendant No.1 and also for perpetual injunction against original defendants, who are present respondent Nos.1 to 3. Though the learned trial court decreed the suit of Kashibai by declaring the adoption deed dated 07/04/1980 in favour of present respondent No.1 as invalid and not binding on her and also by granting perpetual injunction against present respondent Nos.1 to 3 for not to obstruct the possession of Kashibai over the suit land, but the learned first appellate court reversed the said finding by dismissing the suit. Hence, this appeal.

3. Heard rival submissions. Also perused the entire documents on record. The present appeal is admitted only on the following substantial question of law which is formulated by this court vide order dated 16/01/2014 as under :

(a) Whether the First Appellate Court has erred in upholding the adoption deed in question being legal by ignoring Section 10 of Hindu Adoption and Maintenance Act, 1956?

The learned counsel for the appellants pointed out that as per the Section 10(3) of Hindu Adoption and Maintenance Act, 1956 a boy over the age of 15 years cannot be given in adoption and in the instant matter the present respondent No.1, who was admittedly adopted by original plaintiff – Kashibai under the adoption deed dated 07/04/1980 was 21 years of age i.e. over the age of 15 years. He also argued that nothing is mentioned in the said adoption deed that there was any custom in the family of Kashibai or respondent No.1 in respect of adopting a boy over the age of 15 years. Thus, he prayed for cancellation of said adoption deed since respondent No.1 did not adduce any evidence to show that there was such custom in his family or family of Kashibai. According to him, a boy over the age of 15 years was not capable of giving and taking in adoption. Thus, he prayed for setting aside the judgment and decree of the learned first appellate court and to restore the judgment and decree of the learned trial court.

4. On the contrary, learned counsel for respondent Nos.1 to 3 strongly opposed the submissions made on behalf of the appellants. He pointed out that the observations are already recorded by the learned first appellate court as regards the objection raised by the learned counsel for the appellants in respect of age of the person to be given in adoption. He further pointed out that as per the presumption under Section 16 of Hindu Adoption and Maintenance Act, the adoption deed is presumed to be valid one if it is registered. He placed his reliance on the judgment of this court in case of Hanmant Laxman Salunke since deceased by his legal heirs vs. Shrirang Narayn Kanse, reported in 2006(2) Bom. C.R. 254 and prayed for dismissal of the appeal.

5. Admittedly, the adoption deed in question, which is dated 07/04/1980, indicates that Kashibai had adopted the present respondent No.1 when he was over the age of 15 years. Moreover, nothing is mentioned in the said adoption deed as regards the custom prevailing in the family of Kashibai that a boy over the age of 15 years was capable of being giving or taking in adoption. However, on going through the judgment of the learned first appellate court, t