Indian Kanoon - Search engine for Indian Law

(d) After the death of their two sons in the year 1989 and 1994, the respondents adopted first appellant as their daughter on 11.09.1995 before the family deity, in the presence of priests and other witnesses as per the usage and custom of their community. The first appellant is daughter of sister-in-law of first respondent. At the time of adoption, the first appellant was 21 years. As per the custom and usage of the community of the appellants and respondents, a person can be adopted even if she or he is more than 15 years. As per Section 10 (4) of the Hindu Adoptions and Maintenance Act, 1956, there is an exemption for adoption of a person aged more than 15 years, if custom and usage of the community to which adoptive parents and the person who gives child in adoption belong. The respondents executed an adoption deed which was registered on 20.09.1995 and marked as Ex.A.15. The respondents have not taken any steps to cancel the adoption deed Ex.A.15. They have also not filed any suit for declaration that the said adoption deed is null and void, within three years of adoption and deed of adoption as per Article 59 of Limitation Act.

(e) According to the respondents, within few days of adoption deed, the respondents consulted their Advocate and were informed that the adoption deed is void and there is no necessity to cancel the same. According to the respondents, they informed the first appellant and appellants 5 & 6 about the same and at their request, they treated the first appellant as their foster daughter. These contentions are after thought of respondents.

(f) The respondents only conducted the marriage of the first appellant with the second appellant and invitation had been printed in the name of the respondents.

(i) The first appellant, in her evidence as DW1 has stated that she does not want the property but her husband and natural parents only want the property. From her evidence, it is clear that the appellants 2, 5 & 6 are creating mischief and are instigating the first appellant. The respondents are claiming only permanent injunction and both the courts have granted the said relief. The respondents are satisfied with the decree of permanent injunction.

(j) As far as the adoption of first appellant is concerned, according to the pleadings, she was adopted on 11.09.1995 when she was 21 years and the same was recorded by Ex.A15 adoption deed. According to the respondents, the said adoption deed is void and there is not necessity for them to take action for cancellation of Ex.A15. As per Section 10 (iv) of the Hindu Adoptions and Maintenance Act, 1956 a person aged more than 15 years cannot be given or taken in adoption except if there is any custom or usage in the locality or community or in the family of a person adopting a person more than 15 years. The respondents have stated that there is no custom or usage in their community permitting adoption of a person aged more than 15 years. They have stated that custom is to give and take adoption in the presence of family deity. Custom and usage is defined under Section 3 of the Act. The appellants claim that there is a custom and usage in their community to adopt a person aged more than 15 years.

Substantial question of law No.2

23. Initially the respondents filed suit for declaration that adoption deed is null and void and for permanent injunction. Subsequently, they deleted the prayer for declaration and retained the prayer for permanent injunction restraining the appellants from interfering with their peaceful possession and enjoyment of the suit property. According to the respondents, by mistake they adopted the first appellant on 11.09.1995 contrary to provisions of Hindu Adoptions and Maintenance Act, 1956. The said adoption is invalid as there is no custom to adopt a person aged more than 15 years. On 11.09.1995, the first appellant was aged 21 years. In view of adoption is invalid, the adoption deed dated 20.09.1995 Ex.A15 is void and they have not taken any steps to cancel the adoption deed Ex.A15. They prayed for injunction as appellants tried to interfere with their peaceful possession and enjoyment of the suit properties. The appellants, in their written statement contended that as per custom prevailing in their community, adoption of a person aged more than 15 years is valid. The first appellant was taken in adoption as per the custom and usage of their community. The said adoption is valid. The suit for declaration is barred by limitation.