HASAN, J. — This second appeal arises out of a civil suit filed by the plaintiff (appellants) which was decreed by the trial Court for cancellation of adoption of Veer Singh by Ramlal (defendant No. 1) which was reversed by the first appellate court dismissing the plaintiffs suit, itself. Factual Matrix: (2). Smt. Sukhli (Plaintiff No. 1) has married to Harsahay. Harsahay is said to have died four years prior to the filing of the present suit. Thereafter, she is said to have been residing with Ramlal (defendant No. 1) as his wife, after performing village custom and rites. According to her, Ramlal (defendant No.1) with an oblique motive, adopted Veer Singh as his son from Hardevaram (defendant No. 3) on 4.9.70 under a deed of adoption having been manipulated by defendant Nos. 2 & 3. (3). In para 4 of the plaint, the plaintiffs have admitted that the defendant No. 1 had got adoption deed registered but, their assertion was that in fact, Hardevaram (defendant No. 3) never given his son Veer Singh (defendant no.2) in adoption nor Ramlal (defendant No. 1) adopted Veer Singh as his son; and further that Veer Singh was aged 19 years and married person; so, his adoption was void ab initio because of the reasons also that no consent was taken by Ramlal from Smt. Sukhli being his wife. (4). On the above averments and grounds, the plaintiffs by filing the present suit, sought a decree for cancellation of the adoption of Veer Singh holding it to be illegal. (5). On behalf of the defendants, in joint written statement, denying the fact of plaintiff No. ls residing as wife to defendant No.l in his house after performing village customs & rites, it has been averred that the adoption of Veer Singh by Ramlal took place in accordance with their customary rites and that, since plaintiff No. 1 was not the wife of Ramlal, there was no necessity or essential under any law to take prior consent of Smt. Sukhli, inasmuch as Veer Singh was aged 14 years and not 19 years. (6).
(6). Upon the pleadings of the parties, the trial Court framed the following issues: ¼1½ vk;k izfroknh o gjnsok izfroknh oknh la[;k 2 jkepUn ds lxs pkpk rkÅ gSA oknh ¼2½ vk;k oknh la[;k 1 dk izfroknh jkeyky ds lkFk xkao ds jLeh fjokt ds vuqlkj ?kjokyk gqvkA bldk okn ij D;k izHkko gSA oknh ¼3½ vk;k izfroknh la[;k 1 uas izfroknh la- 2 dks tkfr ds jhfr fjokt ds vuqlkj xksn fy;k & izfroknh ¼4½ vk;k izfroknh ua- xksn ukeas dh jftLVªh ds le; 19 o"kZ dk Fkk rFkk okn ij D;k izHkko & izfroknh ¼5½ lgk;rk (7). After recording the evidence led by both the parties and their arguments were heard, the trial Court decreed the plaintiffs suit cancelling the adoption in question. Against which, the respondent Veer Singh and Ramlal preferred an appeal before the Civil Judge, Jhunjhunu, who allowing their appeal set aside the judgment & decree of the trial court and dismissed the plaintiffs suit for cancellation of the adoption in question. Hence this second appeal on the following substantial question of law formulated by this Court admitting this appeal for consideration: — "Whether the finding of the lower appellate court in reversal of the finding of the trial court to the effect that Mr. Veer Singh had been verbally adopted by Ramlal, is perverse?" (8). The first appellate court in order to decide first appeal, discussed the evidence on record and the trial courts findings only on two issues-second and third issues framed by the trial Court. The first appellate court decided issue No. 2 against the plaintiff-appellants on the grounds that, admittedly, Smt. Sukhli was married wife of Harsahai who had been in government service and after his death, family pension was accorded in favour of Smt. Sukhli and that pension has regularly been received by her after submission of a declaration to the effect that she had not been married rather she was unmarried after the death of her husband Har Sahay because, she had not performed any second marriage.
Such a finding has been arrived by the lower appellate court basing it on admissible evidence on record including copies of declarations and certificate in support of the declaration, itself, having been made before receipt of the family pension accorded to the plaintiff No. 1, which have been led in evidence by the defendant- respondent and admitted by the counsel for the plaintiff-appellant before the lower court, itself. The declaration & certificate were held to be admission of Smt. Sukhli herself, because she herself made declaration and issued certificate before getting family pension that she had been unmarried and did not perform any second marriage, and in this manner, she derived benefit out of declaration & certificate of non-performance of second marriage, and she continued to draw family pension on those declarations which have not been denied being given/ made by her. In view of the clarificatory admissions wrung out the declarations & certifications, in my view also, the lower appellate court rightly held Smt. Sukhli having no relationship with Ramlal as his wife, and that Gharbasa (nata marriage)as alleged/claimed by Smt. Sukhli could not rightly be held to be true fact. (9). Learned counsel for the plaintiff-appellants urged that the admission of documents by their counsel can never be termed as admissions having been made by the plaintiff, herself. Such an argument is bizarre and barren of force and I am not inclined to accept it in the facts and circumstances of the present case. There is nothing on record to either rebut such a thing or deny the fact of admission having been made by their counsel or deny the fact of execution of the declaration and/or certificate issued in support of it, or deny the receipt of family pension on the basis of the said declaration and the certificate, treating Smt. Sukhli herself as widow of Har Sahay and having conducted no second marriage after death of Har Sahay. These documents having been allowed to be taken on record after hearing both the parties under order dated 5.11.1980 by the lower appellate court, are certainly in the form of admissions of the plaintiff herself and clearly shows that she admitted herself to be widow of Har Sahay and never stated herself to be wife of Ramlal even after filing of the present suit, besides she admitted herself having conducted no second marriage.
In view of these clarificatory admissions, wrung out above, her case or plea that she conducted/performed Gharvasha (nata marriage) by residing with Ramlal as his wife after performing village customary rites, clearly falsifies her whole case, and that being so, the edifice of her case, itself, crumbles down. If she claims to be wife of Ramlal, then I fail to understand as to why she had shown herself to be wife of late Shri Harsahay while making declaration and issuing certificate to that effect so as to get family pension, and why did she not show herself to be wife of Ramlal. Thus, by virtue of her own admission, she herself crumbled down the edifice of her whole case. (10). After dealing with unnecessary the aforesaid controversy or question as it was not at all found to have arisen at the time of admission of this second appeal, as substantial question of law, let me pass on to the question of law formulated by this Court in view of the provisions of Section 100, C. P.C. The question formulated as substantial one is, whether the finding of the appellate court in reversal of the finding of the trial court to the effect that Veer Singh had been verbally adopted by Ramlal is perverse or not ? In other words, the controversy in fact is as to whether the finding of lower appellate court recorded on the basis of certain documents on record can be said to be perverse or erroneous warranting any interference in this second appeal. (11). Having perused the impugned judgment of the lower appellate court, it is abundantly clear that the findings arrived at by the lower appellate court as to adoption of Veer Singh are definitely based on admissible evidence both, oral and documentary. The present question formulated as substantial one in this second appeal certainly involves and requires consideration of the evidence on record by way of re-appraisal thereof, and that being so, it involves questions of fact and it is trite that the findings on questions of fact cannot be disturbed in view of inhibition put under Code of Civil Procedure while exercising second appellate jurisdiction under Section 100, C.P.C. (12).
As regards verbal adoption of Veer Singh, the lower appellate court found the controversy raised on two fold grounds, that is, whether Veer Singh at the time of adoption was not capable of being taken in adoption because he was stated to be more than 15 years of age and duly married, and secondly, whether any ceremony of taking & giving during adoption had taken place or not? On first question, the lower appellate court discussed the evidence of Layak Ram (DW1), & Ramlal (DW2). Layakram deposed that in their Ahir caste, there has been customary rites to adopt married & unmarried son or daughter of 20-25 years of age. Supporting testimony of Layak Ram (DW1), Ramlal (DW2) added that Ahir caste fellows used to take and give married and long aged persons in adoption and he cited an example of one Gheesa who was married, and Jhuntha who was aged 30 years. Similarly, Nanda (DW5) stated the fact of the persons of their age from 6 to 30 years whether they are married or unmarried, being taken in adoption, of their caste Ahir, inasmuch as he cited an example of Danji married and aged 20 years, Nanu] faged 20-25 years. On the basis of such an evidence admissible on record, the lower appellate court arrived at the conclusion that there was a custom or usage applicable to Ahir caste to which both the parties herein belong, and the customs in Ahir caste permit persons who are married and who have completed the age of fifteen years being taken in adoption. Such a conclusion being based on evidence on record cannot be reversed by this Court invoking jurisdiction under Section 100, CPC nor it can be held to be perverse or erroneous in the eye of law, much less warrant any interference by this Court.
Such a conclusion being based on evidence on record cannot be reversed by this Court invoking jurisdiction under Section 100, CPC nor it can be held to be perverse or erroneous in the eye of law, much less warrant any interference by this Court. Thus, even if it is found that Veer Singh was above the age of fifteen years and married at the time of adoption, his adoption would come within the purview of subclauses (iv) & (iii) of Section 10 of the Hindu Adoptions & Maintenance Act, and in the facts and circumstances of the case, the defendants have successfully proved by leading admissible evidence on record that in their Ahir caste, there has been custom and usage applicable to their caste which permit persons who are married and who have completed the age of fifteen years being taken in adoption. So, in case of Veer Singh found to be married and having completed the age of 15 years at the time of oral adoption or otherwise, their case being within purview of sub-sections (iii) & (iv) of Sec. 10 of the Hindu Adoptions & Maintenance Act, does not come within the bar on inhibition to adoption on any such ground. (13). On second ground, as to the ceremony of taking and giving for adoption of Veer Singh, the lower appellate court discussed the evidence of Layak Ram (DW1), Ramlal (DW2), Ramjilal (DW3), Veer Singh (DW4) & Mohar Singh (DW6). All these persons in the same breath deposed that verbally the adoption took place in Smt. year 2022 of which a deed was got written and registered on 7.9.70; that during verbal adoption, Veer Singh was aged 9-10 years, and during execution & registration of adoption deed, he was 15 years of age duly unmarried and 5-6 months after adoption deed was executed then he was got married. Similarly, they deposed and corroborated each others by stating that the ceremony of taking and giving Veer Singh in adoption took place in the presence of Hardeva, Ramjilal, Ramlal, Mohar Singh, Dhedharam, besides other village people, during which, customary rites were performed in the presence of parents & guardian concerned, by actually giving and taking Veer Singh in adoption and by performing ceremony of distribution of sweets, gur etc.
On the basis of the above evidence proved on record, the lower appellate court came to the conclusion that Veer Singh was actually given and taken in adoption by the parents of Veer Singh, and that there is no evidence from the side of the plaintiff as against the admissible evidence proved on record of the defendant. Even in the presence of the evidence on record of the defendants which is found to have been proved by the lower appellate court and admissible in evidence, which established that verbal adoption took place in the Smt. year 2022 equivalent to year 1965 of English calendar and in that year 1965, Veer Singh as per his school certificate showing his date of birth as 6.5.1955 (vide Ex. 1) which has been produced by the plaintiff as would be evident from the order sheet dated 3.8.1971,was aged only 10 years which is corroborative to the recital made in the registered adoption deed which depicts that during adoption Veer Singh was 10 years of age, it is precisely clear that Veer Singh at the time of verbal adoption was capable of being taken in adoption, as he was not married nor completed age of 15 years in the year 1965 (Smt. year 2022), and that he was not disqualified in view of the bar or inhibition under Section 10 of the Hindu Adoptions and Maintenance Act, also. In this view of the matter, the lower appellate court was right in reversing the findings of the trial court as to the verbal adoption, and the findings arrived at by the lower appellate court in reversal of the findings of the trial court to the effect that Veer Singh had been verbally adopted by Ramlal, are not perverse. The lower appellate court was further right in holding the adoption of Veer Singh as valid on other grounds including one that Mst. Sukhli being not legally wedded wife to Ramlal in view of her own admissions wrung out from his own made declaration and certificate produced so as to derive the benefit of family pension of her husband, Harsahay being a government servant, (as noticed at the threshold of this judgment), had no legal right to challenge the impugned adoption of Veer Singh. (14).
(14). For the reasons stated (ut supra), I find no grounds to interfere with the findings of the lower appellate court on the question formulated by this Court at the time of admission of this second appeal, nor I find any compelling reasons to disturb the impugned findings of fact duly based on evidence on record. Hence this second appeal has no force. (15). Consequently, this appeal is dismissed with no order as to costs.