IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 11TH MARCH 2009 / 20TH PHALGUNA 1930 RFA.No. 804 of 2008() --------------------- OS.12/2006 of D.C & SESSIONS COURT,THIRUVANANTHAPURAM .................... APPELLANT:PLAINTIFF: ------------------------- S.JAYAKUMAR,S/O.BHARATHIAMMA, KANIAYANKUDIVILAKOM, ROADARIKATHUPUTHEN VEEDU, MAILAKKARA, MAILAKKARA P.O. THIRUVANANTHAPURAM. BY ADV. MR. G.P.SHINOD MR. RAM MOHAN.G. MR. MANU V. RESPONDENT/DEFENDANT: --------------- NIL THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 11/03/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M. SASIDHARAN NAMBIAR, J. ------------------------------------------------- R.F.A.No. 804 OF 2008 -------------------------------------------------- Dated this the 11th day of March, 2009 J U D G M E N T Plaintiff in O.S.12 of 2006 on the file of District Court, Thiruvananthapuram is the appellant. Appellant was born to Sasidharan Nair and Vanaja on 15.5.1975. Bharathi Amma, the aunt of the appellant was employed as a part time sweeper in the Income Tax department. After the death of Bharathi Amma, appellant filed O.S.515 of 1999 before Munsiff Court, Attingal impleading one Vijayakumar for a declaration that he is the adopted son of Bharathi Amma. Ext.A7 decree and A8 exparte judgment were passed declaring that he is the legally adopted son of Bharathi Amma. Armed with Exts.A7, A8 appellant sought appointment in the Income Tax department under Dying-in- Harness scheme as the adopted son of Bharathi Amma. When it was rejected as per order dated 22.5.2004, appellant filed W.P (C).19722 of 2004 to quash that order and for a direction to appoint the appellant. In that writ petition, Exts.A7 and A8 were produced in support of his case that he is the adopted son. RFA.804/2008-C 2 Under Ext.A6 judgment, the writ petition was disposed granting liberty to the appellant to file a suit before the District Court as observed in Sudarsanan Sen Vs. Sudarasanan (2005 (3) KLT 178). It was clarified that if the appellant gets a decree in his favour and he produces the said declaration, the Government shall consider the application already submitted by the petitioner and rejected earlier. O.S.12 of 2006 was thereafter instituted before District Court, Thiruvananthapuram without impleading any other party including the other relatives of Bharathi Amma as defendant. The relief sought for was “ a decree declaring that plaintiff is the legally adopted son of K. Bharathi Amma”. Paper publication was effected and nobody appeared. Learned District Judge after recording the evidence of PWs 1 to 3 and Exts.A1 to A8 dismissed the suit holding that under sub section (iv) of section 10 of Hindu Adoption and Maintenance Act, 1956, a person who has completed the age of 15 years cannot be taken in adoption and as per Exts.A2 and A3 appellant was aged 23 years when he was adopted and therefore a decree that appellant was voluntarily adopted by Bharathi Amma cannot be granted. Appeal is filed challenging the judgment. RFA.804/2008-C 3 2. Learned counsel appearing for appellant was heard. 3. The argument of the learned counsel is that even though in Exts.A2 and A3 it is stated that the adoption was on 10.9.1998, it has been specifically pleaded in the plaint that he was adopted by Bharathi Amma at the age of 13 and in paragraph 11, where cause of action was pleaded, it has been stated that the date of adoption was 18.12.1988 and evidence of PWs 1 to 3 establish that fact and therefore dismissal of the suit for the reason that he was adopted at the age of 23 years in 1998 is not legal and it is to be set aside. 4. Under section 10 of Hindu Adoption and Maintenance Act, no person shall be capable of being taken in adoption unless the conditions provided therein are fulfilled. Under sub section (iv) the person to be adopted shall not be completed the age of 15 years, unless there is a custom or usage applicable to the parties, which permits persons who have completed the age of 15 years of being taken in adoption. Ext.A6 judgment in the writ petition show that the application filed by the appellant for appointment in Dying-in-Harness was rejected finding that on the date of adoption, appellant was aged more than 15 years and RFA.804/2008-C 4 therefore he cannot be given appointment as the validly adopted son of Bharathi Amma. It also shows that when the writ petition was heard, it was submitted before the Court that the custom prevailing in their community permits adoption of persons even above the age of 15 years. But the plaint does not contain any pleading that there was any such custom or that appellant was adopted in accordance with any such custom. On the other hand, what was contended in the plaint was that he was adopted at the age of 13 years, much earlier to the date shown in Exts.A2 and A3 and not that the adoption was valid due to any custom or practice. Therefore, in the absence of pleading regarding a custom which enables adoption of a person above the age of 15 years, the question of any such custom or practice does not arise for consideration. 5. Even though appellant contended in the plaint and also stated in his proof affidavit and supported by the evidence of his natural father, who was examined as PW2, and another witness as PW3 that he was adopted on 18.10.1988 and not on 10.8.1998, that case cannot be accepted. Even though the learned counsel argued that Exts.A2 and A3 were executed later RFA.804/2008-C 5 as no documentary evidence was available to prove the adoption and were not executed at the time of adoption on the materials available I cannot accept the alleged adoption prior to Exts.A2 and A3. 6. Exts.A7 and A8, the decree and judgment in O.S.515 of 1999 filed by the appellant himself, show that according to the appellant when he filed the said suit, he was adopted by Bharathi Amma only on 6.9.1998. Ext.A2 registered adoption deed was executed on 10.9.1998. As per Ext.A2, appellant was adopted by Bharathi Amma with the consent of the natural parents of the appellant, who consented to the adoption and were also the attesting witnesses to Ext.A2, the adoption was only on 10.9.1998. Clause 8 of Ext.A2 specifically provide that appellant was aged 23 years at that time and he had consented to take him in adoption and therefore Bharathi Amma adopted him on 10.9.1998, which is not contrary to the custom prevailing in the community of the parents of the appellant. But Exts.A7 and A8 show that when O.S.515 of 1999 was filed, appellant contended that he was adopted on 6.9.1998 and not in 1988. If, in fact, he was adopted in 1988, appellant would not have pleaded in RFA.804/2008-C 6 O.S.515 of 1999 that he was adopted only on 6.9.1998, even if the adoption deed was executed on 10.9.1998. Added to this, Ext.A3 is a consent deed executed by the appellant himself giving his consent for adoption under Ext.A2. Ext.A3 conclusively establish that he was not adopted prior to that date as he has stated that he continued to be the son of his natural parents till then and on the said date onwards he is the adopted son of Bharathi Amma. Therefore the interested version of the appellant or his father cannot be accepted. Though PW3 was examined to prove that there was an adoption in 1988, when neither in the plaint nor in the earlier litigation or at the time of evidence appellant or his father had no case that any religious function was conducted at the time of adoption, evidence of PW3 that he participated in the function cannot be believed. If so, his evidence can only be disbelieved. In the light of Exts.A2 and A3 and the case asserted by appellant himself in Exts.A7 and A8, it can only be found that appellant was adopted on 109.1998 under Ext.A2 when he was aged 23 years. When appellant could not have been legally adopted, after he attained the age of 15 years under section 10(iv) of the Act, learned District Judge was RFA.804/2008-C 7 perfectly correct in dismissing the suit holding that there cannot be a valid adoption in violation of the provisions of section 10(iv) of Hindu Adoption and Maintenance Act, 1956. There is no merit in the appeal. Appeal is dismissed. M. SASIDHARAN NAMBIAR, JUDGE okb