Kerala High Court · 2009

M. SASIDHARAN NAMBIAR, J.-------------------------------------------------R.F.A.No. 804 OF 2008--------------------------------------------------Dated this the 11th day of March, 2009J U D G M E N TPlaintiff in O.S.12 of 2006 on the file of District Court,Thiruvananthapuram is the appellant. Appellant was born toSasidharan Nair and Vanaja on 15.5.1975. Bharathi Amma, theaunt of the appellant was employed as a part time sweeper in theIncome Tax department. After the death of Bharathi Amma,appellant filed O.S.515 of 1999 before Munsiff Court, Attingalimpleading one Vijayakumar for a declaration that he is theadopted son of Bharathi Amma. Ext.A7 decree and A8 expartejudgment were passed declaring that he is the legally adoptedson of Bharathi Amma. Armed with Exts.A7, A8 appellant soughtappointment in the Income Tax department under Dying-in-Harness scheme as the adopted son of Bharathi Amma. When itwas rejected as per order dated 22.5.2004, appellant filed W.P(C).19722 of 2004 to quash that order and for a direction toappoint the appellant. In that writ petition, Exts.A7 and A8 wereproduced in support of his case that he is the adopted son. RFA.804/2008-C2Under Ext.A6 judgment, the writ petition was disposed grantingliberty to the appellant to file a suit before the District Court asobserved in Sudarsanan Sen Vs. Sudarasanan (2005 (3) KLT178). It was clarified that if the appellant gets a decree in hisfavour and he produces the said declaration, the Governmentshall consider the application already submitted by the petitionerand rejected earlier. O.S.12 of 2006 was thereafter institutedbefore District Court, Thiruvananthapuram without impleadingany other party including the other relatives of Bharathi Ammaas defendant. The relief sought for was “ a decree declaring thatplaintiff is the legally adopted son of K. Bharathi Amma”. Paperpublication was effected and nobody appeared. Learned DistrictJudge after recording the evidence of PWs 1 to 3 and Exts.A1 toA8 dismissed the suit holding that under sub section (iv) ofsection 10 of Hindu Adoption and Maintenance Act, 1956, aperson who has completed the age of 15 years cannot be taken inadoption and as per Exts.A2 and A3 appellant was aged 23 yearswhen he was adopted and therefore a decree that appellant wasvoluntarily adopted by Bharathi Amma cannot be granted.Appeal is filed challenging the judgment. RFA.804/2008-C32.Learned counsel appearing for appellant was heard.3.The argument of the learned counsel is that eventhough in Exts.A2 and A3 it is stated that the adoption was on10.9.1998, it has been specifically pleaded in the plaint that hewas adopted by Bharathi Amma at the age of 13 and inparagraph 11, where cause of action was pleaded, it has beenstated that the date of adoption was 18.12.1988 and evidence ofPWs 1 to 3 establish that fact and therefore dismissal of the suitfor the reason that he was adopted at the age of 23 years in 1998is not legal and it is to be set aside. 4.Under section 10 of Hindu Adoption and MaintenanceAct, no person shall be capable of being taken in adoption unlessthe conditions provided therein are fulfilled. Under sub section(iv) the person to be adopted shall not be completed the age of15 years, unless there is a custom or usage applicable to theparties, which permits persons who have completed the age of15 years of being taken in adoption. Ext.A6 judgment in the writpetition show that the application filed by the appellant forappointment in Dying-in-Harness was rejected finding that onthe date of adoption, appellant was aged more than 15 years and RFA.804/2008-C4therefore he cannot be given appointment as the validly adoptedson of Bharathi Amma. It also shows that when the writ petitionwas heard, it was submitted before the Court that the customprevailing in their community permits adoption of persons evenabove the age of 15 years. But the plaint does not contain anypleading that there was any such custom or that appellant wasadopted in accordance with any such custom. On the otherhand, what was contended in the plaint was that he was adoptedat the age of 13 years, much earlier to the date shown in Exts.A2and A3 and not that the adoption was valid due to any custom orpractice. Therefore, in the absence of pleading regarding acustom which enables adoption of a person above the age of 15years, the question of any such custom or practice does not arisefor consideration.5.Even though appellant contended in the plaint andalso stated in his proof affidavit and supported by the evidence ofhis natural father, who was examined as PW2, and anotherwitness as PW3 that he was adopted on 18.10.1988 and not on10.8.1998, that case cannot be accepted. Even though thelearned counsel argued that Exts.A2 and A3 were executed later RFA.804/2008-C5as no documentary evidence was available to prove the adoptionand were not executed at the time of adoption on the materialsavailable I cannot accept the alleged adoption prior to Exts.A2and A3.6.Exts.A7 and A8, the decree and judgment in O.S.515of 1999 filed by the appellant himself, show that according to theappellant when he filed the said suit, he was adopted by BharathiAmma only on 6.9.1998. Ext.A2 registered adoption deed wasexecuted on 10.9.1998. As per Ext.A2, appellant was adopted byBharathi Amma with the consent of the natural parents of theappellant, who consented to the adoption and were also theattesting witnesses to Ext.A2, the adoption was only on10.9.1998. Clause 8 of Ext.A2 specifically provide that appellantwas aged 23 years at that time and he had consented to take himin adoption and therefore Bharathi Amma adopted him on10.9.1998, which is not contrary to the custom prevailing in thecommunity of the parents of the appellant. But Exts.A7 and A8show that when O.S.515 of 1999 was filed, appellant contendedthat he was adopted on 6.9.1998 and not in 1988. If, in fact, hewas adopted in 1988, appellant would not have pleaded in RFA.804/2008-C6O.S.515 of 1999 that he was adopted only on 6.9.1998, even ifthe adoption deed was executed on 10.9.1998. Added to this,Ext.A3 is a consent deed executed by the appellant himselfgiving his consent for adoption under Ext.A2. Ext.A3conclusively establish that he was not adopted prior to that dateas he has stated that he continued to be the son of his naturalparents till then and on the said date onwards he is the adoptedson of Bharathi Amma. Therefore the interested version of theappellant or his father cannot be accepted. Though PW3 wasexamined to prove that there was an adoption in 1988, whenneither in the plaint nor in the earlier litigation or at the time ofevidence appellant or his father had no case that any religiousfunction was conducted at the time of adoption, evidence of PW3that he participated in the function cannot be believed. If so, hisevidence can only be disbelieved. In the light of Exts.A2 and A3and the case asserted by appellant himself in Exts.A7 and A8, itcan only be found that appellant was adopted on 109.1998 underExt.A2 when he was aged 23 years. When appellant could nothave been legally adopted, after he attained the age of 15 yearsunder section 10(iv) of the Act, learned District Judge was RFA.804/2008-C7perfectly correct in dismissing the suit holding that there cannotbe a valid adoption in violation of the provisions of section 10(iv)of Hindu Adoption and Maintenance Act, 1956. There is no meritin the appeal. Appeal is dismissed.M. SASIDHARAN NAMBIAR, JUDGEokb