Judgment ( 1. ) THIS is plaintiffs second appeal. He has lost in the Trial Court as well as in the lower Appellate Court. ( 2. ) PLAINTIFF/appellant filed a suit for declaration and permanent injunction on allegations that he constituted a co-parcenary with Jagram (Original defendant No. 7 in the suit and it is a mystery how his name has disappeared from cause title of lower Appellate Court and Memo of this second appeal ). According to plaint allegations, said Jagram, with consent of his wife, by an unregistered document (Exh. P-5) adopted appellant on 18-11-1970 after performing religious rituals and as per custom. Subsequently, a registered deed of adoption was executed on 16-1-1998 (Exh. P-1 ). Further case of the appellant was that Jagram, without any legal necessity and partition between the plaintiff and himself, could not have sold to defendant Nos. 1 to 6 suit property more particularly described in Paragraphs 2 and 3 of the plaint. Thus, plaintiff sought a declaration that the sales effected by Jagram were not binding upon him and as he continued to cultivate the suit land, therefore he also sought relief of permanent injunction not to interfere with his possession over the suit land. ( 3. ) DEFENDANT Nos. 1 to 6 in their written statement denied the plaint allegations including the adoption and deed of adoption. Jagram in his separate written statement denied the adoption and joint ownership of the suit properties with plaintiff. Said written statement is dated 27-8-1997. Based upon pleadings, trial Court framed issues. Initially, Trial Court, while deciding preliminary issue, returned the plaint for want of pecuniary jurisdiction, however, in appeal that order was set aside and case was remanded back for trial. Thereafter, parties led evidence. Upon appreciation of evidence, Trial Court found that the so called adoption was not proved. It was also found that on the date of the so called adoption, plaintiff had crossed the prescribed age of 15 years and he has married. Trial Court held that Exh. P-1 had no evidentiary value, as it did not bear the signature of plaintiffs natural father, more over it was executed and registered after Jagram had filed his written statement denying adoption. So far as Exh. Trial Court held that Exh. P-1 had no evidentiary value, as it did not bear the signature of plaintiffs natural father, more over it was executed and registered after Jagram had filed his written statement denying adoption. So far as Exh. P-5 is concerned, Trial Court found that it was written on plain piece of paper and as such it was a useless piece of paper for want of registration and other reliable and cogent evidence to establish contrary custom or usage. On these findings, trial Court non-suited the plaintiff. Matter was carried in appeal by the plaintiff. As stated, the appeal was also dismissed by the impugned judgment and decree. Hence, this second appeal by the plaintiff. ( 4. ) SHRI V. K. Jain, learned Counsel for the appellant was heard at length on the question of admission. Learned Counsel for the appellant strongly attacked the judgment and decree passed by the Trial Court as well as by the lower Appellate Court. He submitted that plaintiff lawfully went in adoption to jagram and Court below have erred in law in holding that no adoption was proved. In this connection, he referred to Exh. P-1 and Exh. P-5. ( 5. ) AFTER having heard Shri Jain, and going through record of Courts below, we find that there is no merit and substance in this appeal. It is no longer in dispute that on the date of adoption, appellant had not only crossed the prescribed age limit but was also a married person. ( 6. ) SECTION 5 (1) of Act says :- "no adoption shall be made after the commencement of this Act by or to a Hindu except in accordance with the provisions contained in this Chapter and any adoption made in contravention of the said provisions shall be void. " 6. Section 10 of the Hindu Adoptions and Maintenance Act prescribes four conditions for a valid adoption. There is no dispute in respect of the first two conditions in the present case. The conditions (iii) and (iv) prescribe that person to be adopted should not be a married one and must not have completed the age of 15 years unless there is a custom or usage applicable to the parties permitting such adoptions. There is no dispute in respect of the first two conditions in the present case. The conditions (iii) and (iv) prescribe that person to be adopted should not be a married one and must not have completed the age of 15 years unless there is a custom or usage applicable to the parties permitting such adoptions. It is, therefore, clear that the first two conditions accept no exceptions while the subsequent conditions are subject to a contrary rule prevalent in the community by reason of a custom or usage. It is on the basis of this exception to conditions (iii) and (iv) that the plaintiff claims a valid and legal adoption inasmuch as, he had crossed the maximum age of 15 years and was also married at the time of this adoption. Section 3 of the said Act prescribes as to what is required to make an act or conduct amounting to custom or usage. According to it, it must be a rule, which has obtained the force of law because of its open, continuous and uniform observation for a long time and such a rule should not be uncertain, unreasonable or opposed to any public policy. It is to be considered in the case at hand as to whether the plaintiff proves by sufficient evidence on record that there was a custom or usage in his community permitting the adoption of a married boy of more than 15 years in age and whether such a custom or usage was observed openly, continuously and uniformly thereby gaining the force of law. It is pertinent to note that such a case of custom or usage in the community and the adoption in pursuance of such a custom is conspicuously absent. It is not pleaded in the suit that there was any such custom or usage in his community providing exceptions to conditions (iii) and (iv) of Section 10 of the act nor there is any whisper that the adoption of the plaintiff was made in conformity and in pursuance of such a custom or usage. It is material to note that what is averred in the plaint by the plaintiff is not that there was any such custom or usage but the adoption of the plaintiff by Jagram was performed as per customary ceremonies. It is material to note that what is averred in the plaint by the plaintiff is not that there was any such custom or usage but the adoption of the plaintiff by Jagram was performed as per customary ceremonies. The scheme of the Act is not to make a child of 15 years of age or above fit to be taken in adoption. Exception was made in favour of a custom to the contrary. The exceptions provided to conditions (iii) and (iv) of section 10 of the Act are not, therefore, sufficiently carved out in the case at hand and as such the bar prescribed by these two conditions in respect of the marriage and age of the person to be adopted would come in the way of the present plaintiff. Both the Courts below were, therefore, justified and right in holding that the plaintiff failed to prove any custom as alleged and as such, the necessary requirements of Section 10 for a valid adoption were not complied with. ( 7. ) IT was next contended that in view of registered deed of adoption, section 16 would come to the rescue of the appellant. We see no force in this submission too. Section 16 of the Act reads as follows :- "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 the act, unless and until it is disproved. " The implication of Section 16 of the Act is : It there is any document purporting to record an adoption made and it is signed by the person giving and the person taking the child in adoption, and that document is registered under any law for the time being in force and it is produced before any Court, the Court shall presume that the adoption has been made in compliance with the provisions of the Act, unless and until it is disproved. When Section 16 speaks about compliance with the provisions of the Act, it has reference to the general requirements under the Act with regard to a valid adoption. The general requirement has been laid down in Section 10. When Section 16 speaks about compliance with the provisions of the Act, it has reference to the general requirements under the Act with regard to a valid adoption. The general requirement has been laid down in Section 10. Clauses (iii) and (iv) thereof sets down the requirement regarding the marriage and age of the person to be adopted as fifteen years. If the conditions as per Section 16 are satisfied, then there could be a presumption as to the satisfaction of the requirement of the age being fifteen years. But when the admitted position is that the age of person adopted was over fifteen years and he was married too, then it could only come under the exception and the validity of such adoption could be upheld only when the custom or usage applicable to parties permitting the adoption of a person over the age of fifteen years is proved and established. The simple reason is, with regard to an exception, there could not be a presumption, legal or otherwise. Exception is a departure from the normal and general requirements. An exception takes out the case from the purview of general requirements. An exception must be proved and it cannot be presumed. When an exception is engrafted in the main part of the provision to the effect that on satisfaction of certain conditions, the general requirements need not be invoked, the onus in regard to such exceptional conditions is on the person who pleads them. An exception must be strictly construed. The presumption under Section 16 does not cover the case of an exception to the general requirements of the provisions of the Act. That is how, Section 16 must be construed. Otherwise, it will lead to anomalous results, e. g. , even if there is no satisfaction of the general requirements, Court will be called upon to presume the exception. This could not be the intendment of the legal presumption under section 16. There must be plea and proof of the exception under custom or usage spoken to in Clauses (iii) and (iv) of Section 10. Unless that is made out, there could not be a presumption of such custom or usage. This could not be the intendment of the legal presumption under section 16. There must be plea and proof of the exception under custom or usage spoken to in Clauses (iii) and (iv) of Section 10. Unless that is made out, there could not be a presumption of such custom or usage. Even by a bare reading of Section 16, it is not possible to spell out a theory that is dispenses with pleading and proof in the case of an exception under Sections 10 (iii) and (iv) of the Act. Accordingly, we find that Courts below have rightly non-suited the plaintiff. With the result, this Second Appeal fails and is hereby dismissed summarily as it does not give rise to any question of law much less substantial question of law. Appellant shall bear the costs of respondents throughout. 2008-ILR(MP)-0-868 , 2008-MPHT-4-418 HIGH COURT OF MADHYA PRADESH Coram : Before : Honble Mr. S.K. Seth, J. Feb 01,2008 MADAN LAL Vs VINOD KUMAR ( 1. ) THIS is plaintiffs second appeal. He has lost in the Trial Court as well as in the lower Appellate Court. ( 2. ) PLAINTIFF/appellant filed a suit for declaration and permanent injunction on allegations that he constituted a co-parcenary with Jagram (Original defendant No. 7 in the suit and it is a mystery how his name has disappeared from cause title of lower Appellate Court and Memo of this second appeal ). According to plaint allegations, said Jagram, with consent of his wife, by an unregistered document (Exh. P-5) adopted appellant on 18-11-1970 after performing religious rituals and as per custom. Subsequently, a registered deed of adoption was executed on 16-1-1998 (Exh. P-1 ). Further case of the appellant was that Jagram, without any legal necessity and partition between the plaintiff and himself, could not have sold to defendant Nos. 1 to 6 suit property more particularly described in Paragraphs 2 and 3 of the plaint. Thus, plaintiff sought a declaration that the sales effected by Jagram were not binding upon him and as he continued to cultivate the suit land, therefore he also sought relief of permanent injunction not to interfere with his possession over the suit land. ( 3. ) DEFENDANT Nos. 1 to 6 in their written statement denied the plaint allegations including the adoption and deed of adoption. ( 3. ) DEFENDANT Nos. 1 to 6 in their written statement denied the plaint allegations including the adoption and deed of adoption. Jagram in his separate written statement denied the adoption and joint ownership of the suit properties with plaintiff. Said written statement is dated 27-8-1997. Based upon pleadings, trial Court framed issues. Initially, Trial Court, while deciding preliminary issue, returned the plaint for want of pecuniary jurisdiction, however, in appeal that order was set aside and case was remanded back for trial. Thereafter, parties led evidence. Upon appreciation of evidence, Trial Court found that the so called adoption was not proved. It was also found that on the date of the so called adoption, plaintiff had crossed the prescribed age of 15 years and he has married. Trial Court held that Exh. P-1 had no evidentiary value, as it did not bear the signature of plaintiffs natural father, more over it was executed and registered after Jagram had filed his written statement denying adoption. So far as Exh. P-5 is concerned, Trial Court found that it was written on plain piece of paper and as such it was a useless piece of paper for want of registration and other reliable and cogent evidence to establish contrary custom or usage. On these findings, trial Court non-suited the plaintiff. Matter was carried in appeal by the plaintiff. As stated, the appeal was also dismissed by the impugned judgment and decree. Hence, this second appeal by the plaintiff. ( 4. ) SHRI V. K. Jain, learned Counsel for the appellant was heard at length on the question of admission. Learned Counsel for the appellant strongly attacked the judgment and decree passed by the Trial Court as well as by the lower Appellate Court. He submitted that plaintiff lawfully went in adoption to jagram and Court below have erred in law in holding that no adoption was proved. In this connection, he referred to Exh. P-1 and Exh. P-5. ( 5. ) AFTER having heard Shri Jain, and going through record of Courts below, we find that there is no merit and substance in this appeal. It is no longer in dispute that on the date of adoption, appellant had not only crossed the prescribed age limit but was also a married person. ( 6. P-1 and Exh. P-5. ( 5. ) AFTER having heard Shri Jain, and going through record of Courts below, we find that there is no merit and substance in this appeal. It is no longer in dispute that on the date of adoption, appellant had not only crossed the prescribed age limit but was also a married person. ( 6. ) SECTION 5 (1) of Act says :- "no adoption shall be made after the commencement of this Act by or to a Hindu except in accordance with the provisions contained in this Chapter and any adoption made in contravention of the said provisions shall be void. " 6. Section 10 of the Hindu Adoptions and Maintenance Act prescribes four conditions for a valid adoption. There is no dispute in respect of the first two conditions in the present case. The conditions (iii) and (iv) prescribe that person to be adopted should not be a married one and must not have completed the age of 15 years unless there is a custom or usage applicable to the parties permitting such adoptions. It is, therefore, clear that the first two conditions accept no exceptions while the subsequent conditions are subject to a contrary rule prevalent in the community by reason of a custom or usage. It is on the basis of this exception to conditions (iii) and (iv) that the plaintiff claims a valid and legal adoption inasmuch as, he had crossed the maximum age of 15 years and was also married at the time of this adoption. Section 3 of the said Act prescribes as to what is required to make an act or conduct amounting to custom or usage. According to it, it must be a rule, which has obtained the force of law because of its open, continuous and uniform observation for a long time and such a rule should not be uncertain, unreasonable or opposed to any public policy. It is to be considered in the case at hand as to whether the plaintiff proves by sufficient evidence on record that there was a custom or usage in his community permitting the adoption of a married boy of more than 15 years in age and whether such a custom or usage was observed openly, continuously and uniformly thereby gaining the force of law. It is pertinent to note that such a case of custom or usage in the community and the adoption in pursuance of such a custom is conspicuously absent. It is not pleaded in the suit that there was any such custom or usage in his community providing exceptions to conditions (iii) and (iv) of Section 10 of the act nor there is any whisper that the adoption of the plaintiff was made in conformity and in pursuance of such a custom or usage. It is material to note that what is averred in the plaint by the plaintiff is not that there was any such custom or usage but the adoption of the plaintiff by Jagram was performed as per customary ceremonies. The scheme of the Act is not to make a child of 15 years of age or above fit to be taken in adoption. Exception was made in favour of a custom to the contrary. The exceptions provided to conditions (iii) and (iv) of section 10 of the Act are not, therefore, sufficiently carved out in the case at hand and as such the bar prescribed by these two conditions in respect of the marriage and age of the person to be adopted would come in the way of the present plaintiff. Both the Courts below were, therefore, justified and right in holding that the plaintiff failed to prove any custom as alleged and as such, the necessary requirements of Section 10 for a valid adoption were not complied with. ( 7. ) IT was next contended that in view of registered deed of adoption, section 16 would come to the rescue of the appellant. We see no force in this submission too. Section 16 of the Act reads as follows :- "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 the act, unless and until it is disproved. " The implication of Section 16 of the Act is : It there is any document purporting to record an adoption made and it is signed by the person giving and the person taking the child in adoption, and that document is registered under any law for the time being in force and it is produced before any Court, the Court shall presume that the adoption has been made in compliance with the provisions of the Act, unless and until it is disproved. When Section 16 speaks about compliance with the provisions of the Act, it has reference to the general requirements under the Act with regard to a valid adoption. The general requirement has been laid down in Section 10. Clauses (iii) and (iv) thereof sets down the requirement regarding the marriage and age of the person to be adopted as fifteen years. If the conditions as per Section 16 are satisfied, then there could be a presumption as to the satisfaction of the requirement of the age being fifteen years. But when the admitted position is that the age of person adopted was over fifteen years and he was married too, then it could only come under the exception and the validity of such adoption could be upheld only when the custom or usage applicable to parties permitting the adoption of a person over the age of fifteen years is proved and established. The simple reason is, with regard to an exception, there could not be a presumption, legal or otherwise. Exception is a departure from the normal and general requirements. An exception takes out the case from the purview of general requirements. An exception must be proved and it cannot be presumed. When an exception is engrafted in the main part of the provision to the effect that on satisfaction of certain conditions, the general requirements need not be invoked, the onus in regard to such exceptional conditions is on the person who pleads them. An exception must be strictly construed. The presumption under Section 16 does not cover the case of an exception to the general requirements of the provisions of the Act. That is how, Section 16 must be construed. Otherwise, it will lead to anomalous results, e. g. , even if there is no satisfaction of the general requirements, Court will be called upon to presume the exception. The presumption under Section 16 does not cover the case of an exception to the general requirements of the provisions of the Act. That is how, Section 16 must be construed. Otherwise, it will lead to anomalous results, e. g. , even if there is no satisfaction of the general requirements, Court will be called upon to presume the exception. This could not be the intendment of the legal presumption under section 16. There must be plea and proof of the exception under custom or usage spoken to in Clauses (iii) and (iv) of Section 10. Unless that is made out, there could not be a presumption of such custom or usage. Even by a bare reading of Section 16, it is not possible to spell out a theory that is dispenses with pleading and proof in the case of an exception under Sections 10 (iii) and (iv) of the Act. Accordingly, we find that Courts below have rightly non-suited the plaintiff. With the result, this Second Appeal fails and is hereby dismissed summarily as it does not give rise to any question of law much less substantial question of law. Appellant shall bear the costs of respondents throughout.