Judgment : ( 1 ) THIS appeal has been filed against the judgment dated 31-1-1991 and decree dated 16-2-1991 passed in Title Appeal No. 6 of 1981 whereby and whereunder the learned Additional District Judge, 1, Deoghar allowed the appeal and set aside the judgement and decree of the learned court below and the suit was decreed. ( 2 ) THE plaintiff-respondent brought the suit for declaration that the adoption deed dated 25-2-1977 was illegal, unlawful and not binding upon the plaintiff and for setting aside the deed of adoption and also for declaration that there was no such adoption of defendant 2nd party Radheyshyam by the defendant 1st party Mosmat chandrawati Devi. As per plaint filed by the plaintiff, one Lakeshwar Modi of plaintiff family having no son or daughter adopted plaintiff Nilkantha Barnawal on Sri Basant panchmi day in the year 1971 B. S. about 12 to 13 years ago after observing all the formalities by performing puja and necessary ceremonies and actual giving and taking ceremony in presence of agnates, relations, friends and villagers for spiritual benefit and for securing moksh and pinddan. It is further stated that adoption was illegal and unlawful as there was custom that brothers daughters son in the caste and community of the adoptive father can be adopted and soon after adoption, the plaintiff lived with his adoptive father and mother, mosmat Chandrawati Devi, defendant No. 1 (now deceased) and looked after the agriculture as well as business works of adoptive parents. Lakeshwar Modi died on 29-12-1979 leaving behind his widow-defendant No. 1 and the plaintiff-adopted son as his legal heirs. In the meantime, the relationship between plaintiff and defendant first party became strained due to some misunderstanding in between them. Being an old lady having weak minds, she came in clutches of the defendant No. 2-4th party jagdish Modi and his wife Smt. Bhona Devi, defendant No. 3 who persuaded her for taking their son Radheyshyam Modi-defendant no. 2 as her son and under their influence, defendant No. 1 executed a deed of adoption on 25-2-1977 in favour of his son radheyshyam Modi, defendant-2nd party and also got it illegally registered at Deoghar on the same day by ignoring legal provisions of Hindu Adoptions and Maintenance act,1956. 2 as her son and under their influence, defendant No. 1 executed a deed of adoption on 25-2-1977 in favour of his son radheyshyam Modi, defendant-2nd party and also got it illegally registered at Deoghar on the same day by ignoring legal provisions of Hindu Adoptions and Maintenance act,1956. It is asserted on behalf of the plaintiff that neither Puja nor any kind of ceremony was performed by the defendant-first party nor there was any actual ceremony of giving or taking of the so-called adopted son Radheyshyam Modi as required under the law and the said adoption deed is forged and fabricated and in fact, radheyshyam Modi was not aged 13 years at the time of adoption; rather he was aged 18 years at the time of adoption. The plaintiff came to know about deed of adoption on 30-4-1977 and has filed this suit for apprehending injury to the right, title and interest to the property of Lakeshwar Modi and for future litigation and troubles. ( 3 ) ON the other hand, defendant-appellants Nos. 1, 2 and 3 filed separate written statement denying allegation of the plaintiff-respondent in their respective written statement. Further, no written statement was filed on behalf of the defendant No. 4. The contesting defendants have filed separate written statement. Their case is more or less is same against the plaintiff and all the defendants have admitted correctness of the genealogy table accepting the statement of the plaintiff describing himself as adopted son of Lakeshwar Modi in the plaint. Defendants have denied that Nilkanth barnawal was ever adopted by Lakeshwar modi and his wife defendant No. 1 during their lifetime nor any ceremony was observed in this connection. They have also denied the fact that they have managed property of the defendant No. 1. The defendants have made out a case that Lakeshwar Modi has never adopted Nilkantha Barnawal or any son till he was alive. They also denied existence of custom in the family to adopt brothers daughters son in case of adoption. On the other hand, they have alleged that there was no such custom and adoption from such relationship was prohibited under law and the plaintiff was totally incapable of being adopted. They also denied existence of custom in the family to adopt brothers daughters son in case of adoption. On the other hand, they have alleged that there was no such custom and adoption from such relationship was prohibited under law and the plaintiff was totally incapable of being adopted. They have further stated that all ceremonies were held for adoption of Radheyshyam and allegation that he was 18 years old at the time of adoption is wrong; rather he was aged 13 years at the time of adoption and all rituals such as observance and formalities of taking over and giving over ceremony was observed. ( 4 ) ON the pleading of the parties, six issues were framed and the learned trial court came to a finding that the case of adoption of plaintiff has not been made out. Being aggrieved by the judgment and decree of the learned trial court, plaintiff preferred appeal and in the appeal, he succeeds and the judgment and decree of the learned court below was set aside and the appeal was allowed and now the defendant-respondent have filed this appeal wherein substantial question of law have been framed, which is quoted here-in-below: (i) Whether the lower appellate court has erred in law in rejecting the defendants case of adoption under a registered document by overlooking the provisions of Section 16 of the Hindu Adoptions and Maintenance Act, 1956, without recording any finding as to invalidity (sic) deed otherwise, and (ii) Whether in absence of any pleading or proof by the plaintiff that he had been adopted by husband of defendant No. 1 with her consent, the suit could be decreed. ( 5 ) THE plaintiff had earlier filed a suit that defendant No. 3 was never adopted by defendant No. 1 and that deed of adoption dated 25-2-1977 be declared null and void as it is forged and fabricated document and the learned court below had dismissed the suit, but in appeal learned lower appellate court allowed the appeal and set aside the judgment and decree of the lower court and held that plaintiff was the adopted son of defendant No. 1. In this connection both sides brought documentary as well as oral evidences and on behalf of the plaintiff as many as 31 witnesses have been examined and some documents were also produced. In this connection both sides brought documentary as well as oral evidences and on behalf of the plaintiff as many as 31 witnesses have been examined and some documents were also produced. Learned appellate court appreciated the evidence of witnesses and held that their evidence is consistent on the point. Defendant no. 1 along with her husband had taken in adoption plaintiff No. 1 and that all the rituals relating to procedure of adoption and function of giving and taking of adopted boy from one family to another followed by performance of Puja etc. was held and further claimed that plaintiff No. 1 was adopted and in electoral roll published in the year 1979 wherein plaintiff was described as son of lakeshwar Modi, who is said to be adoptive father. There is pleading in paragraph 5 of the plaint that defendant No. 1 with the consent of her husband adopted the boy and so it cannot be said that no such pleading is there. ( 6 ) SO far as the evidence of adoption and deed of execution is concerned, the lower appellate court has referred two finding of the trial court. The trial court came to finding that necessary witnesses like father and mother who adopted the boy and Pandit and hazam have not been examined. Their non-examination casts a doubt in absence of the fact that there was no registered document so far as the adoption of plaintiff is concerned and there is only oral evidence on this point, so learned court below observed that examination of mother and father who adopted plaintiff No. 1 and Pandit and Hazam was essential and due to non-examination of these witnesses a shadow has been casts on the fact of adoption of plaintiff No. 1 by defendant No. 1 with consent of her husband, who is now dead. Another point over which learned trial court put stress is that the death of Lakeshwar Modi his dead body was taken to Sultanganj for cremation or for final disposal but plaintiff has stated in his evidence that he did not go with the dead body as he was ill, but from what kind of illness he was suffering that he could not go with the dead body and put fire in the mouth of deceased Lakeshwar Modi has not come. The sole purpose of adoption was according to Hindu Mythology or religious sentiment that a son or a adopted son put fire into the mouth of his father so that he may get Moksh and it is said that when a Hindu had no son or he does not adopt any person as son at the time of his death fire is put into the mouth of deceased by someone else, other than his son then he does not get moksh. Sole purpose of adoption is for that purpose and this man was not present at the time when dead body of Lakeshwar Modi was taken to Sultanganj. On the other hand, other person, namely, Radhyeshyam, who said to have been adopted by defendant no. 1, who is widow of Lakeshwar Modi, who along with her husband is said to have adopted Radheyshyam and Radheyshyam put the fire into the mouth of Lakeshwar modi and his dead body was consumed to fire. Further in case of plaintiff No. 1 no written document was prepared but in case of radheyshyam, a deed of adoption was scribed and defendant No. 1 in her evidence said that she along with her husband had adopted Radheyshyam and she denied that plaintiff was adopted by her along with her husband. Apart from the very vital fact that plaintiff was not present at the time of cremation of dead body of Lakeshwar Modi. Uttari was also worn by Radheyshyam and he performed all the functions. Apart from that witness whose presence was essential and without their presence function could not have been held, such as father and mother, who are said to have adopted plaintiff no. 1 and Pandit and Hazam have not been examined and the reliance could have been placed on their evidence but learned lower appellate court instead believe on the evidence of other witness whose presence may be considered at the time of function or may not be there because the presence of father, Mother, Pandit and Hazam could not have been challenged but the other witnesses on whose evidence reliance has been placed, their presence could have been challenged. ( 7 ) SCHOOL register has been brought on record. ( 7 ) SCHOOL register has been brought on record. In the School register, name of plaintiff No. 1 is there with Bharti Modi as his father and first electoral roll published in the year 1975 his fathers name has been given as Bharti Modi, but in the electoral roll of 1979 which was published two years after inception of the suit, name of father of plaintiff No. 1 has been given as Lakeshwar modi and this is a document which can be said to have been created after inception of the suit. ( 8 ) LEARNED counsel for the appellant submitted that deed of adoption was registered in favour of Radheyshyam and according to section 16 of the Hindu Adoptions and Maintenance Act, there is a presumption that whatever contents have been made therein will be presumed to be correct unless disproved. From the deed of adoption it will appear that all the functions etc. were performed and there was no evidence on behalf of the plaintiff to disprove the deed of adoption. In this connection reliance has been placed in the case of Hirabai v. Babu manika Ingale, AIR 1980 Bombay 315, wherein it has been held that deed containing a recital that adoption ceremonies were performed according to caste customs -adopted son living with adoptive mother applying for mutation of surrender property in favour of adopted son - held presumption in favour of adoption was fortified by conduct of adoptive mother and other circumstances in the case. It was further held that adoption by sole surviving widow in that case adopted either gets interest in joint family property in the hands of his adoptive mother from the date of adoption Reliance. was further placed in Annapurna Sahuani v. Narendra Prasad Sahu, AIR 1967 Orissa 129, wherein it was held that when there is a registered document of deed of adoption presumption will be that of good faith. In this connection my attention was drawn in paragraph 3 which is quoted hereinbelow:-"if the original of Ex. B was genuine and was executed by the plaintiff after it was fully explained to her, then under Section 16 of the Hindu Adoptions and Maintenance Act (Central Act 78 of 1956) (hereinafter to be referred to as the Act), a presumption in favour of adoption would accrue. B was genuine and was executed by the plaintiff after it was fully explained to her, then under Section 16 of the Hindu Adoptions and Maintenance Act (Central Act 78 of 1956) (hereinafter to be referred to as the Act), a presumption in favour of adoption would accrue. The section lays down that whenever any document registered under any law for the time being in force is produced before any Court purporting to record an adoption made, and is signed by the person giving and the person taking the child in adoption. the Court shall presume that the adoption has been made in compliance with the provisions of this Act unless and until it is disproved. ( 9 ) ON the other hand, argument was advanced on behalf of the respondent that defendant No. 1 was not authorized by her husband to adopt and, therefore, adoption by her suffers from inherent defect and in this connection reliance was placed in G. Appaswami Chettair v. V. Sarangapani chettiar, AIR 1978 SC 1051 . ( 10 ) ANOTHER point was advanced that date of birth entered into School register is the conclusive proof of age of that person unless it is rebutted. Here in the instant case it was placed that Radheyshyam was aged more than 18 years at the time of adoption and, therefore, he was not being capable of taking in adoption because he was not minor at the relevant time. Plaintiff has brought into existence two documents said to be the certificate of date of birth. From perusal of which it appears that date of birth of defendant No. 3 is in the year 1959 and so-called date of adoption was executed on 22-2-1977 and at that time he was aged about 18 years and, he was not capable of being taken in adoption. On the other hand, documents on behalf of defendant have been filed, which is Exts. 1 and 1/a. From perusal of which it appears that date of birth of Radheyshyam was 22-11-1962 and, therefore, he was not aged 18 years, but was much below 18 years and, therefore, the argument on the point of age is not acceptable in view of the fact that defendant has filed Ext. 2/b and prescribed Form maintained by school whereas it was written as 7-9-1959, but from perusal of Exts. 1 and 1/a it appears that Ext. 2/b and prescribed Form maintained by school whereas it was written as 7-9-1959, but from perusal of Exts. 1 and 1/a it appears that Ext. A was a letter written to the Principal, Madhya vidyalaya, Sibra and indicating the date of birth as 1-1-1962 whereas in Ext. 1/a the date of birth was 29-1-1962 issued by dhanraj Pandit, Principal of the School. Ext. A was issued earlier to Ext. 2/d. ( 11 ) TAKING into consideration the submissions of the parties and going through the records, this appeal is allowed and the judgment and decree of the learned court below is set aside. Appeal allowed. --- *** --- .