MAYA RAM Vs. JAI NARAIN

JUDGEMENT

(1.) The plaintiff is the appellant. He filed a suit for declaration that the registered adoption deed dated June 16, 1970 executed by him adopting the defendant-respondent herein, is illegal and not binding on the plaintiff. Two of the main contentions raised by the plaintiff were (i) that the execution of the document was vitiated by fraud and mis-representation and (ii) the defendant who was a married man with a three years' old child at the time of adoption, could not have been adopted by the plaintiff.

(2.) The factum of adoption is not in dispute. On the first question the concurrent finding of the Courts below is that there is no evidence of any mis-representation or fraud and that the registered adoption deed is not vitiated by any fraud or mis-representation. On the second question, the trial Court was of the view that though there is evidence of custom to show that there was no restriction of age for the person to be adopted and even after marriage a person can be adopted but the custom is that no person who has a son can be adopted. However, in appeal the learned Additional District Judge, Rohtak, held that the evidence of custom showed that the adoption of a married person with a child or children is permitted. He was further of the view that even if it is to be answered that the custom only permitted adoption of a married person but not adoption of a married person with a child or children that portion of the custom which did not recognise adoption of a married person with a child is no longer in force in view of Section (4) read with Section 10 of the Hindu Adoption and Maintenance Act, 1956 (hereinafter referred to as 'the Act). In that view he allowed the appeal, set aside the judgment and decree of the trial Court and ultimately dismissed the suit of the plaintiff.

(3.) In this appeal, the only point for consideration is whether in the presence of the entries in the Riwaj i-am which is marked as P2 in this case that a person having a son cannot be adopted, the view of the lower appellate Court was justified in law. The parties are Hindu Jats and applicability of the Act 78/1956 to them is not in dispute. The adoption having taken place in the year 1910 after the Act came into force, the same will have to be in conformity with the provisions of the Act. Section 5 of the Act provides that no adoption shall be made after the commencement of the Act by or to a Hindu except in accordance with the provisions contained in Chapter (II) of that enactment and that any adoption made in contravention of the said provisions shall be void. Section 4 provides for the over riding effect of the Act and states that in respect of any matter dealt to in the Act, any custom or usage which have the force of law immediately before the commencement of the Act shall cease to have effect with respect to any matter for which provisions is made in the Act save as otherwise expressly provided in the Act itself. Section 10 specifically deals with the qualifications of the person who may be adopted. Therefore, any custom or usage which was in force could not be invoked as against the provisions of Section 10. However, we find in clauses (iii) and (iv) of Section 10, the custom or usage applicable to the parties is prescribed to the extent mentioned therein and those clause sread as follows :-