IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT WRIT WRIT PETITION NO.7561 OF 2008 PETITION NO.7561 OF 2008 PETITION NO.7561 OF 2008 Santosh Chandrakant Bhoj ..Petitioner Vs. Bapu Sampatrao Bhoj & Anr. ..Respondents Mr.Prashant Patil for the Petitioner. CORAM CORAM CORAM :- V.C.DAGA,J. :- V.C.DAGA,J. :- V.C.DAGA,J. DATE DATE DATE : 22ND JANUARY, 2009 : 22ND JANUARY, 2009 : 22ND JANUARY, 2009 P.C. P.C. P.C. 1. This Petition filed under Article 227 of the Constitution of India is directed against the order dated 29th July, 2008 passed by the Adhoc Additional Sessions Judge, Nashik rejecting the Civil Appeal No.92 of 2006. 2. The factual matrix reveals, that one Chandrakant Bhoj was married to Mirabai Bhoj. Mirabai died on 29th January, 1996. Their only son Amol also expired on 9th January, 1997. Thereafter Chandrakant Bhoj also died on 29th September,1999. 3. The Petitioner Mr.Santosh s/o.Tukaram Bhoj is claiming to be the adopted son of deceased Chandrakant Bhoj having adopted him by widow of Chandrakant Bhoj Mrs.Mirabai after the death of her husband and her natural son Amol. 4. It is not in dispute that at the time of adoption, the age of the Petitioner was more than 15 years and he was married. 5. As already stated hereinabove, Mirabai expired on 29th January, 1996. After her death, the present Petitioner filed an application for issuance of succession certificate in his favour. His application was rejected by the Civil Judge, Senior Division, Nashik by an order dated 13th April, 2006 holding that the adoption of the Petitioner was not legal and valid since he was married at the time of adoption having completed 15 years of age and that there was no custom prevailing in their community permitting adoption of a married person. 6. Being aggrieved by the above order of the Civil Judge, Senior Division, Nashik dated 13th April, 2006, Petitioner preferred an Appeal before the District Judge, which was also came to be rejected for the same reasons. 7. The learned District Judge, considering the provisions of Sub Section 3 of Section 10 held as under: If Sub Section 3 of Section 10 is considered, which speaks that person has not been married unless there is custom or usage applicable to the parties which permits persons who are married being taken in adoption. It is the fact as per Exh.97, the appellant was married person. If that person is married, the adoption becomes void, unless custom and usage permits. This fact is clearly mentioned in Section 10. If this section was read prior conducting the case, they party would have certainly speak about the custom and usage. It is the fact that nothing is mentioned in the adoption-deed about the custom, and usage about taking in adoption of married person like the appellant. Thus, there is clear breach of Sub Section 3 of Section 10 of the Hindu Adoption and Maintenance Act,1956. 8. The aforesaid order is subject matter of challenge in this Petition. 9. The learned Counsel for Petitioner was heard at length. He was asked to point out from his pleading the averments leading to custom in his plaint/application and evidence with findings thereon. He could not point out either of the things. In the application, there is absolutely no averment leading to the custom prevailing in the community permitting adoption of a married person above age of 15 years. Needless to mention that the custom is required to be pleaded and proved by leading evidence. In absence of pleadings, evidence is not admissible. The prevalence of the custom is not matter of presumption. It must be pleaded and proved. The Petitioner has neither pleaded nor proved the custom. 10. In the above view of the matter, no fault can be found with the view taken. The learned Counsel for the Petitioner placed reliance on some of the judgments of this Court as well as Apex Court which do not advance the case of the petitioner. On the contrary, all these judgments unequivocally go to show that the custom is required to be pleaded and proved. In absence thereof it was not obligatory on the part of Court to hold the alleged adoption of the present Petitioner as legal and valid. No case is made out to upset concurrent findings of fact recorded by both the Courts below. 11. In the result, the Petition is devoid of any substance. Same is dismissed in limine. No order as to costs. (V.C.DAGA,J.) (V.C.DAGA,J.) (V.C.DAGA,J.)