JUDGMENT
J.S. Narang, J.
1. I do not find any infirmity in the judgment and decree dated 22.10.2001 vide which the appeal been accepted and the suit filed by the plaintiff-respondent has been decreed.
2. It has been argued by the learned counsel for the appellant that in fact the deed of adoption having been registered, the presumption has to be attributed in respect of its correctness in view of Section 16 of the Hindu Adoptions and Maintenance Act, 1956. It is further argued that the presumption which is drawn in view of the aforesaid provision has to be rebutted by the other side, the other side has not challenged the deed in any manner. Reliance has been placed upon a judgment reported as 1985(1) Cur. L.J. 91.
3. I am afraid this argument is not sustainable as the deed of adoption which has been relied upon by the defendant appellant is void ab-initio. It is envisaged under Section 10 of the aforesaid Act that a person above the age of 15 years cannot be adopted unless there is a custom or usage applicable in the area. No such custom or usage has been pleaded. The aforesaid judgment does not come to the rescue of the defendant-appellant as in that case the question was as to whether the ceremony of giving and taking has been performed or not. In that regard the presumption can be correctly drawn in pursuant to Section 16 of the Act but if the person to be given in adoption does not fulfil the condition as envisaged under Section 10 of the Act, such an adoption would be void ab-initio.
4. It has been further argued that no issue in this regard has been framed by the Courts below as such the findings returned in respect of such pleas cannot be relied upon. I am afraid this argument is not available to the defendant-appellant. It is the settled law by the apex Court that the relief cannot be declined in the eventuality of non-framing of an issue.
5. A categoric finding has been returned that defendant-appellant and Joginder Singh had never been adopted by Brahma father of the plaintiff-respondent. The adoption has not been proved and even otherwise the alleged date of adoption i.e. 1. 10/12.3.1981, cannot be legally accepted. It is provided under Section 10 of the Hindu Adoptions and Maintenance Act, 1956 (hereinafter referred to as “the Act”) that a person, who has not completed the age of 15 years on the date of adoption can be adopted and that apart from that the other conditions spelt out in the aforesaid provisions have been fulfilled. However, if the usage or the custom establishes that a person beyond that age of 15 years can be adopted then in pursuant to the said usage or custom, a person above the age of 15 years may be adopted. In the case at hand, it has been established beyond any
doubt that on that date, the defendant-appellant was 21/22 years of age. and that he was married and was having two children. This statement has been made in the cross-examination by DW1 Jagmohan Singh son of Sheokaran. This witness had been produced by the defendant-appellant. In his view of the matter, the lower appellate Court has, therefore, correctly accepted the appeal and has resultantly decreed the suit filed by the plain-tiff-respodnent. The defendant-appellant has neither pleaded any custom or usage nor any has been established that a person in their area above the age of 15 years could be adopted. The plaintiff is the only daughter, thus her right cannot be jeopardized in any manner whatsoever.
In view of the above, no question of law arises for consideration of this Court.
No merit. Dismissed.