: 1 : 861-92-FA-Judgment=.sxw USJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.861 OF 1992 Nagani Baburao Ghongade Age : 33 yrs. Occu : Household, R/at Akola (Basud), Tal. Sangola Dist. Solapur .. Appellant v/s. 1. Sidheshwar Vishwanath Lokhande @ Sidheswar Bajarang Lokhande, age 30 yrs. Occu: Agriculture, R/at Sangola, Tal. Sangola, Dist. Solapur 2. Kalini Vishnu Naste age 45 yrs. Occu: Household, R/at Piliv, Tal. Tal. Malshiras, Dist. Solapur 3. Padmini Basavraj Salkine Age 40 yrs. Occup : Household, R/at of Vijapur (Karnataka) .. Respondents ......... Mr. Prafulla B. Shah with Mr. Vivek V. Salunkhe for the appellant Mr. Umesh Mankapure for respondent nos. 1 and 2A to 2E. ......... CORAM : A.V. NIRGUDE, J DATE : 15th NOVEMBER,2011. Oral Judgment : : 2 : 861-92-FA-Judgment=.sxw 1. This appeal is filed against the judgment and decree passed by the learned Civil Judge, Senior Division, Pandharpur, Dist. Solapur dated 31st January, 1992 in Special Civil Suit No.84 of 1989. The appellant was the plaintiff and the respondents were the defendants. The facts leading to this litigation in short are as under. 2. The appellant and the respondent nos. 2 and 3 are sisters. They are daughters of one Mr. Bajarang Lokhande, who died on 19th December, 1980. The appellant plaintiff came with the case that her father left behind only 3 legal heirs who are he himself and her two sisters i.e. respondent nos. 2 and 3. She stated that on 27th October, 1982, for the first time, she learnt that her father allegedly took the respondent no.1 in adoption in 1980. She, therefore, filed this suit for declaration that the adoption allegedly done on 6th September, 1980 was invalid and for possession of the properties left behind by her father. The respondents together contested the suit. They asserted that the adoption was valid and had taken place through the proper ceremony, which was attended by various persons/relatives and was also witnessed by a document which was a registered one. They also asserted that the appellant’s suit was barred by limitation because it was not filed within 3 years within the date : 3 : 861-92-FA-Judgment=.sxw of appellant’s knowledge about the adoption. The learned Judge of the trial Court framed necessary issues and recorded his finding that the respondent no.1 was adopted validly by Bajarang on 6th September, 1980. He also alleged that the suit was not filed within limitation. 3. After hearing the submissions made at bar and after going through the record, following questions arose for consideration. (i) Whether the adoption of respondent no.1 was valid. (ii) Whether the suit was filed within limitation. 4. The learned advocate appearing for the appellant fairly conceded that though his client had denied the factum of adoption, the evidence that has come on record has fairly proved the factum of adoption. But he asserted that in view of Section 10 of Hindu Adoption and Maintenance Act, the adoption of respondent no.1 was invalid. It is common ground that on the day of adoption, the respondent no. 1 was more than 18 years old and was even married, having a child. The learned Counsel, therefore, placed reliance on Section 10 of the Act, which reads as under. : 4 : 861-92-FA-Judgment=.sxw (i) has not completed the age of fifteen years, unless there is a custom or usage applicable to the parties which permits per “10. Persons who may be adopted – No person shall be capable of being taken in adoption unless the following conditions are fulfilled, namely:- (ii)he or she is a Hindu; (iii)he or she has not already been adopted; (iv)he or she has not been married, unless there is a custom or usage applicable to the parties which permits persons who are married being taken in adoption; (v)he or she has not completed the age of fifteen years, unless there is a custom or usage applicable to the parties which permits per “10. Persons who may be adopted – No person shall be capable of being taken in adoption unless the following conditions are fulfilled, namely:- (vi) sons who have completed the age of fifteen years being taken in adoption.” 5. Having read the provision, it is clear that a person who is married or a person who has completed age of 15 years is ineligible to be taken in adoption. However, Section 10 makes an exception to this rule, which shows that this Rule is not applicable where there is a custom or usage which permitted persons who are married or persons who have competed age of 15 years to be taken in adoption. The question, therefore, is whether the respondent no.1 could prove that his case would fall within the exception of Section 10. In other words, whether he proves that his adoption was valid because of custom or usage. The respondent no.1 recorded deposition of number of witnesses who stated on oath that in : 5 : 861-92-FA-Judgment=.sxw their community namely; Lingayat Pancham Wani, there is custom permitting adoption of a person who married or who is about the age of 15 years. The learned Judge believed these witnesses and held that the respondent no.1 could prove the custom. The learned Judge also referred to various case laws including the judgment of full bench of this Court in the case of Anirudh Jagdeorao Vs. Babarao Irbaji & Ors. AIR 1983, Bom.391. 6. I think the judgment of the full bench would apply to the facts of this case on all respect. I am, therefore, not discussing other judgments which are supporting the respondent no.1 on this point. The full bench of this Court in the above referred judgment examined exhaustively the law on this subject and held as under. “15. The adoption of a boy belonging to one family into another family carries with it important civil consequences with respect to inheritance and a share in the joint family property. The divergence of opinion among the various commentators and as a result thereof in the judgments given by High Courts in different States appears to have inducted Parliament not to upset the settled notions of people in different parts of the country and not to disturb the long practice and usage founded either upon local custom or observance of the rules laid down in commentaries and Digests, but instead to preserve them intact so far as the taking : 6 : 861-92-FA-Judgment=.sxw of a person over 15 years of age or a married person in adoption was concerned. It must also be borne in mind that a large number of people who take children of other families in adoption are villagers and not likely to know the changes in the law which have been enacted and, therefore, would take a boy of over 15 years of age or a married person in adoption when as they had known people around them having done so and in some cases when they themselves had probably been taken in adoption in this fashion. In such cases, for people suddenly to find the question of succession not only in their family but also in the family of the adopted boy being unsettled by reason of the adoption being contrary to the provisions of the said Act would be a calamity. It was in order not to bring about such disastrous consequences upon unknowing people that Parliament in these two instances seems to have been induced expressly to preserve the texts, rules and interpretations of Hindu law as also customs and usages of Hindu law in this behalf intact and to make exceptions in this behalf in Cls. (iii) and (iv) of S. 10 of the said Act. This practice of taking married persons and boys over 15 years of age in adoption in the regions which are governed by the Bombay School of Hindu Law has been consistently recognized by the Bombay High Court. The cases which have done so are numerous and many of them have been set out by Vaidya, J., who spoke for the Bench in the case of Haribai V. Baba Anna, AIR 1977, Bom.289. 16. For the reasons given above, we hold that the expressions “custom” and “usage” as defined in Clause (a) of Section 3 of the said Act include not only customs and usages in the ordinary sense which have obtained the force of law among Hindus in any local area, tribe, community, group or family, but also texts, rules and interpretation of Hindu Law which have been continuously and uniformly observed and have obtained the force of law among Hindus in any local area, tribe, community, group or family. 17. In our opinion, the correct view of the provisions of Clause (a) of Section 3 and of Section 4 and Clauses (iii) and (iv) of : 7 : 861-92-FA-Judgment=.sxw Section 10 of the said Act was taken by Vaidya and Shimpi, JJ., in Haribai V. Baba Anna, AIR 1977, Bom. 289.” 7. In view of the fact that District Solapur from where the appeal arose is a part of old State of Bombay where the Bombay School of Hindu Law was applicable, the question would never arose as to whether the adoption would be valid because of the age and the marital status of the adopted person. 8. The second point is about limitation. As said above, the respondent no.1 could prove that the adoption took place on 6th September, 1980 and Bajarang died thereafter during December, 1980. It is the case of the appellant plaintiff that though she attended the funeral of her father in December, 1980, she could learnt about the adoption only in July, 1982. The learned Judge did not believed this statement recording various reasons based on circumstances which are part of the evidence. One of them, a prominent one, is the fact that when the adoption ceremony took place in 1980, the appellant’s husband and children were present. They are seen in photographs taken at the time of ceremony. The evidence also shows that the document of adoption was even signed as as witness by the husband of the appellant. Although it could not be proved that the : 8 : 861-92-FA-Judgment=.sxw appellant plaintiff was present at the time of ceremony of adoption, she cannot deny the knowledge of the same because of the above referred circumstances. The learned Judge of the trial Court rightly disbelieved her case when she said that she first learnt about the adoption in July, 1982. Since, the suit was not filed within three years from the date of adoption. The learned Judge of the lower Court rightly held that suit was barred by limitation. The limitation for declaratory suit is prescribed in Article 57 of the Indian Limitation Act, which provides 3 years of limitation from the date of knowledge. The appeal shall, therefore, fail. Appeal stands dismissed. (A.V. NIRGUDE, J.)