1 S.A. No. 728/2004 HIGH COURT OF MADHYA PRADESH: JABALPUR SINGLE BENCH: HON. SHRI JUSTICE A.K. SHRIVASTAVA SECOND APPEAL NO. 728/2004 ....APPELLANT: Mukesh Kumar Saxena, ....PLAINTIFF S/o Shri Ramesh Chandra Saxena, R/o H. No. J-37, Near Filter Plant, Railway Colony, Bhopal, M.P. -Versus- ....RESPONDENTS: 1. Union of India Through the ....DEFENDANTS General Manager, Western Railways, Mumbai (M.S.) 2. Divisional Manager, Western Railways, Ratlam (M.P.) 3. General Public .............................................................................................. .. Appellant - Shri Vivek Agrawal, Advocate Respondents - Shri Ashok Sinha, Advocate. ................................................................................................ J U D G M E N T (14/09/2011) 1. This second appeal has been filed at the instance of plaintiff against the judgment of reversal. The learned Trial Court decreed the suit of plaintiff while the learned First Appellate Court dismissed it. 2 S.A. No. 728/2004 2. A suit for declaration that plaintiff is the adopted son of Ramesh Chandra Saxena has been filed by the plaintiff because after the death of Ramesh Chandra Saxena, respondents have refused to give compassionate appointment to him in place of Ramesh Chandra Saxena. 3. The written statement was filed by the defendants in which the averments made in the plaint were denied. 4. The learned Trial Court framed necessary issues and after recording evidence of the parties decreed the suit of plaintiff and the first appeal which was filed by defendants has been allowed by the impugned judgment and decree. 5. In this manner, this second appeal has been filed by the appellant which was admitted on 28.1.2005 on the following substantial questions of law:- (i) “ Whether the adoption deed filed by the appellant is in contravention of Section 10 of the Hindu Adoption and Maintenance Act, 1956 ?” (ii) “Whether no consequential relief directly flew from the relief of declaration and as such the suit was maintainable ?” 6. The only contention which has been put forth by learned counsel for the appellant is that the adoption deed 3 S.A. No. 728/2004 Ex. P/2 was executed on 25.1.1993 and on that date the age of plaintiff was 22 years. Learned counsel submits that under the custom the plaintiff can go in adoption of Ramesh Chandra Saxena and his wife although on the date of execution of the adoption deed dated 25.1.1993 his age was 22 years. 7. On the other hand, Shri Ashok Sinha, learned counsel for the respondents argued in support of the impugned judgment. 8. Having heard learned counsel for the parties, I am of the view that this appeal deserves to be dismissed. Regarding Substantial Question of Law No.1:- 9. On going through the judgment passed by the learned First Appellate Court this Court finds that although the adoption was taken place by executing a registered document (Ex. P/2) on 25.1.1993 but since it is in contravention to Section 10 of the Hindu Adoption and Maintenance Act, 1956, the adoption cannot be said to be a valid adoption. In this context Section 10 of the said Act may be taken note of. On bare perusal of this Section, this Court finds that the person who is going in adoption should not complete his age of 15 years unless and until the 4 S.A. No. 728/2004 custom or usage so permit. On bare perusal of the pleadings as well as evidence on record this Court finds that no valid custom has been pleaded nor the same has been proved. According to the exception of contrary custom and usage to the prohibition envisaged under Section 10 of the said Act i.e. prohibition of persons aged more than 15 years to be adopted, cannot be presumed invoking Section 16 of the said Act which speaks about presumption of a registered document relating to the adoption. Such an exception is to be specifically pleaded and proved. No such custom has been neither pleaded nor proved, therefore, adoption of plaintiff whose age was more than 15 years on the date of adoption was not permissible under the law. On going through the registered document of the adoption no where it is found that the adoption of the plaintiff took place when his age was less than 15 years and the document of adoption was registered on a later date. I have gone through the pleadings and evidence placed on record and I find that only this much has been pleaded that in Dipawali the plaintiff was taken in adoption by Ramesh Chandra Saxena and his wife. This could hardly be said to be a valid custom. 5 S.A. No. 728/2004 10. Hence I am of the view that learned First Appellate Court did not commit any error in holding that the valid custom has not been proved by the plaintiff. 11. In this view of the matter the substantial question of law no.1 is answered that in absence of pleading of contrary custom and usage and its proof, the adoption of plaintiff was in contravention of Section 10 of Hindu Adoption and Maintenance Act, 1956. 12. Since substantial question of law no.1 is answered against the appellant there is no necessity to answer substantial question of law no.2. 13. However, before parting with the case I would like to observe that this judgment and holding that adoption is not valid is only for the purpose of this appeal and against the defendants only. 14. With the aforesaid observations, this appeal is dismissed by affirming the impugned judgment and decree passed by learned First Appellate Court with no order as to costs (A.K. SHRIVASTAVA) Judge rao 6 S.A. No. 728/2004