JUDGEMNT : 1. The appellant has filed this First Appeal Under Section 96 of the Civil Procedure Code with Civil Application seeking stay of order dated 24.12.2008 passed by the learned Fourth Additional Senior Civil Judge and Judicial Magistrate First Class, Palanpur, passed in Special Civil Suit No.49 of 1992 during the pendency of the appeal. 2. The brief facts of the appellant case are that the respondent Nos.1 to 4 are the original plaintiffs ( respondent No.1 is son of deceased Gangaben Jethabhai daughter of Sakda Raichand who expired in the year 1953 and respondent Nos.2 to 4 are the heirs of Ganiben Maganbhai daughter of Sakda Raichand who expired in the year 1983) who instituted suit against Gangaben widow of Ramchand Sakda Dhos (original defendant No.1) and the appellant – original defendant No.2 ( adoptive son of defendant No.1) as well as against respondent Nos.6 to 16 – original defendant Nos.3 to 13 (defendant Nos.6 to 11 are the heirs of deceased Gangaben Jethabhai who expired in the year 1953 and respondent Nos.12 and 13 are the heirs of deceased Ganiben Maganbhai who expired in the year 1983 and respondent Nos.14 to 16 are the heirs of deceased Samiben (expired in the year 1987 and is daughter of deceased Lakshmiben Sakda who expired in the year 1990). The suit is instituted for partition in respect of land bearing Survey Nos.920/1, 920/2, 923 and House No.720 and 721 as well as Plot Nos.1, 23, 42 to 45, 61 to 64, 66 to 73, 76 to 87 and 90 to 92 of Survey No.618/1 situated at Village : Lakshmipura more particularly described in para1 of the plaint. 3. The deceased Sakda Raichand Dhos had expired on 22.10.1969 leaving behind one son and three daughters viz. Ramchand Sakda, Gangaben Sakda, Ganiben Sakda and Lakshmiben Sakda. Ramchand Sakda expired on 1.3.1989. The deceased Gangaben Jethabhai daughter of Sakda Raichand expired in the year 1953 and Ganiben Maganbhai daughter of Sakda Raichand expired in the year 1983 and Lakshmiben Sakda expired in the year 1990 and her daughter Samiben expired in the year 1987. 4. On death of Sakda Raichand the land bearing Survey No.618/1, 920 and 923 were mutated in favour of his one son Ramchand and two daughters viz. Ganiben and Lakshmiben. The said entry bearing No.2274 was mutated in the village record on 9.12.1969 and was certified on 27.5.1970. 4. On death of Sakda Raichand the land bearing Survey No.618/1, 920 and 923 were mutated in favour of his one son Ramchand and two daughters viz. Ganiben and Lakshmiben. The said entry bearing No.2274 was mutated in the village record on 9.12.1969 and was certified on 27.5.1970. Thereafter, Ganiben (mother of respondent Nos.2 to 4 – original plaintiff Nos.2 to 4) and Lakshmiben released their right over the land on the basis of their application and statement. An entry to that effect was mutated in the village record vide entry bearing No.4162 dated 16.2.1981 duly certified on 26.3.1981. During their lifetime or till date the said entry bearing No.4162 has not been challenged and is in the revenue record since the year 1981. Therefore, Ramchand Sakda became the owner of the land and on his death it was inherited by his wife viz. Gangaben widow of Ramchand Sakda. The appellant is the adoptive son of Gangaben widow of Ramchand as per registered adoption deed dated 6.4.1992 registered at Serial No.798 duly registered before the Joint Sub Registrar, Palanpur. 5. It is in the background of the above facts the Special Civil Suit No.49 of 1992 was instituted by respondent Nos.1 to 4 for partition and for mesne profits and for a declaration that the adoption by Gangaben (original defendant No.1) of Shyamalbhai (original defendant No.2) is illegal and void. In short, the mesne profit was prayed on the allegation that the house was in possession of defendant Nos.1 and 2 and were also derived in income from the agricultural land. The issue are framed on 18.7.2001. The original plaintiffs examined six witnesses out of which plaintiff No.1 and plaintiff No.2 deposed before the trial Court. The original defendant Nos.1 and 2 deposed before the trial Court. Thereafter, original defendant No.1 viz. Gangaben expired on 17.5.2008 and she was deleted and the suit stood abated against her. However, in view of his adoptive son on record of the trial Court as original defendant No.2, the cause survived and the suit was heard. 6. The original defendant Nos.1 and 2 deposed before the trial Court. Thereafter, original defendant No.1 viz. Gangaben expired on 17.5.2008 and she was deleted and the suit stood abated against her. However, in view of his adoptive son on record of the trial Court as original defendant No.2, the cause survived and the suit was heard. 6. The trial Court passed a judgment and decree dated 24.12.2008 allowing the suit and declaring the partition of the land amongst the original plaintiff and original defendant Nos.3 to 13 and also declared that the adoption of defendant No.2 (appellant herein) by deceased defendant No.1 is illegal and permanently injuncted original defendant Nos.1 and 2 from alienating the suit property. The said judgment and decree is challenged before this Court by way of present First Appeal. Alongwith the appeal, the appellant had also filed Civil Application No.552 of 2009 for stay wherein this Court by an adinterim order was pleased to stay the impugned judgment dated 24.12.2008 which was confirmed by an order dated 26.9.2011. In the meantime, respondent Nos.17 and 18 were permitted to be impleaded as parties in the First Appeal by an order dated 2.7.2010 passed by this Court in Civil Application No.2665 of 2010. The said order was challenged by the appellant before the Hon’ble Supreme Court which was allowed by an order dated 5.8.2011 passed in Civil Appeal Nos.6385 and 6386 of 2011 and the order dated 2.7.2010 passed by this Court was set aside. However, the Hon’ble Supreme Court permitted respondent Nos.16 and 17 to assist this Court during the final arguments as interveners. It was clarified that they should not be treated as parties to the appeal nor can claim to be heard as of right. 7. During the pendency of the appeal, the respondent Nos.1 to 4 have filed individual affidavits all dated 11.2.2009 admitting that the appellant is accepted as the adoptive son of deceased Gangaben Ramchand Sakda and they have no objection if the property is inherited by the appellant. The said affidavits are filed before this Court duly affirmed on oath. 7. During the pendency of the appeal, the respondent Nos.1 to 4 have filed individual affidavits all dated 11.2.2009 admitting that the appellant is accepted as the adoptive son of deceased Gangaben Ramchand Sakda and they have no objection if the property is inherited by the appellant. The said affidavits are filed before this Court duly affirmed on oath. Similarly, respondent Nos.14 to 16 have filed individual affidavits dated 14.2.2010 stating and admitting on oath that the appellant was adopted by Gangaben as per the adoption deed and that their grandmother Ganiben during her life time had released her right over the land as per entry No.4162 dated 16.2.1981 and have admitted that they did not appear before the lower Court despite summons being served they had no right over the land and belonged to original defendant Nos.1 and 2. Even respondent Nos.14 to 16 accepted that the appellant is the adopted son of deceased Ramchand Sakda and deceased Gangaben. However, subsequently respondent Nos.1 to 4 have filed another affidavit dated 11.10.2009 before this Court seeking permission to withdraw the earlier affidavit dated 11.2.2009. 8. Heard Mr.Mihir Thakor, learned Senior Counsel appearing with Mr.Vimal Patel, learned counsel for the appellant and Mr.S.P.Majmudar, learned counsel for opponent Nos.1 and 2, Mr.Dhaval Vyas, learned counsel for opponent Nos.3 and 4, Mr.Kalpesh T. Gurnani, learned counsel for opponent Nos.3/1 and 4, Mr.Abhaykumar P. Shah, learned counsel for opponent Nos.14 to 16 and Mr.Ankit Y. Bachani, learned counsel for opponent No.18. 9. Mr.Mihir Thakor, learned Senior Counsel appearing with Mr.Vimal Patel, learned counsel for the appellant has submitted that in view of the registered adoption deed dated 6.4.1992 and same being not challenged in cross-examination and that it stands proved, the said document recording the adoption made which is signed by the person giving and the person taking the child in adoption, the court shall presume under Section 16 that the adoption has been made in compliance with the provisions of the Hindu Adoption & Maintenance Act, 1956 (hereinafter referred to as “Hindu Adoption Act”) unless and until it is disproved. Therefore there are two submissions of the appellant; 10. The appellant was taken in adoption and given in adoption when he was minor and therefore, the appellant is the adoptive son of Ramchand Sakda and Gangaben Sakda. The said fact is recited in registered adoption deed dated 6.4.1992. Therefore there are two submissions of the appellant; 10. The appellant was taken in adoption and given in adoption when he was minor and therefore, the appellant is the adoptive son of Ramchand Sakda and Gangaben Sakda. The said fact is recited in registered adoption deed dated 6.4.1992. Further it is supported by the oral evidence of the appellant (Ex.160). The document was produced by the appellant and was proved. The said fact is not disproved by the original plaintiffs except denying in their oral deposition. Even Gangaben and adoptive mother in her deposition has stated that the appellant is adopted at the age of 89 years. The said fact is also supported by the affidavit dated 11.2.2009 submitted by the respondent Nos.14 to 16 – original defendant Nos.11 to 13 admitting the fact that the appellant was adopted by Raichand and Gangaben. The respondent Nos.14 to 16 are the grand daughters of Laxmiben who was daughter of Sakda. Therefore, considering the evidence on record and the fact that the registered adoption deed recites the said fact and that the adoption deed is not disproved, the adoption of appellant is legal and valid and this Court under Section 16 shall presume that the adoption is made with compliance with the provisions of Hindu Adoption Act. 11. He has submitted that in the alternative assuming that the appellant was not adopted at the age of 89 years even then the appellant is legally adopted as on the date of the deed of adoption dated 6.4.1992 in compliance with the provisions of Hindu Adoption Act. That there is a custom and usage which permits person who have completed the age of 15 years being taken in adoption. The prevailing of such usage and custom is deposed and proved by leading oral evidence of the appellant as well as of Gangaben (Ex.175). On the other hand the original plaintiffs have not led oral evidence to show that there is no such usage and custom. Therefore, there is compliance of Section 10(iv) of the Hindu Adoption Act. Even in view of adoption deed which recites about it, presumption shall have to be taken by the Court. It is further submitted that the adoptive mother i.e. Gangaben is more than 21 years older than the appellant and there is compliance of Section 11(iii) of the Hindu Adoption Act. Even in view of adoption deed which recites about it, presumption shall have to be taken by the Court. It is further submitted that the adoptive mother i.e. Gangaben is more than 21 years older than the appellant and there is compliance of Section 11(iii) of the Hindu Adoption Act. The fact that Gangaben is more than 21 years older than appellant and substantiated from the following documents. (i) Rojkam (Panchkyas) prepared by Talati cumMantri, Palanpur wherein the age of Gangaben is stated to be 60 years (Ex.142). The Rojkam (Panchkyas) is prepared on 22.5.1992 and signed by two witnesses as well as by TalaticumMantri. Therefore, she was born in the year 1932. (ii) In the oral evidence, the Gangaben has stated that her age on the date of deposition is of 72 years (Ex.175). She has deposed on 22.3.2007. Therefore, she was born in the year 1935. (iii) The adoption deed describes the age of Gangaben to be 58 years as on execution of the adoption deed (Ex.172). The adoption deed is executed on 6.4.1992. Therefore, she was born in the year 1934. (iv) School leaving certificate describing that the birth date of appellant is 1.9.1959 (Ex.170). Therefore, taking that Gangaben was born in the year 1935 even than in view of the appellant born in the year 1959, there is an age difference of 24 years between Gangaben and appellant which is more than 21 years. Therefore, there is compliance of Section 11(iii) of Hindu Adoption Act. Therefore, in view of the registered adoption deed and the fact that it is not rebutted and disproved, the Court shall presume that the adoption has been made in compliance of the provisions of the Hindu Adoption Act. 12. In support of above issues he has relied on (1) judgment dated 29.1.2013 passed by the Hon’ble Supreme Court in Civil Appeal No.2058 of 2003 in a case between Laxmibai (dead) through Lr’s and another Vs. Bhagwanthbuva (dead) through Lr’s and others (2) Judgment dated 16.9.2011 passed by Jharkhand High Court in Second Appeal No.149 of 1989 (P) in a case between unknown Vs. Sharnidevi and others (3) AIR 1982 Punjab & Haryana 282, Amar Singh Vs. Tejram and (4) AIR 1998 Allahbad 230, Baru (since deceased) and another Vs. Tejpal and others. 13. Bhagwanthbuva (dead) through Lr’s and others (2) Judgment dated 16.9.2011 passed by Jharkhand High Court in Second Appeal No.149 of 1989 (P) in a case between unknown Vs. Sharnidevi and others (3) AIR 1982 Punjab & Haryana 282, Amar Singh Vs. Tejram and (4) AIR 1998 Allahbad 230, Baru (since deceased) and another Vs. Tejpal and others. 13. He has submitted that the respondent Nos.1 to 4 – original plaintiffs have no right to sue since they have no right over the suit land. The subject land was mutated in the name of deceased Sakda Raichand and on his death on 22.10.1969 the land was mutated in the name of his son Ramchand Sakda and two daughters viz. Ganiben and Laxmiben in the year 1969. The said entry is mutated vide entry bearing No.2247 dated 9.12.1969 which was never challenged by the plaintiffs. In any case Gangaben daughter of Sakda Raichand had expired in the year 1953. Therefore, her name was not mutated in the village record. Thereafter Ganiben (mother of respondent Nos.2 to 4 – original plaintiff Nos.2 to 4) and Laxmiben released their right over the land on the basis of application and statement. An entry to that effect was mutated in the village record vide entry bearing No.4162 (Ex.93). The said entry was never challenged by the original plaintiffs nor they have claimed any right and since then the subject land is owned and possessed by Ramchand Sakda. Hence when Laxmiben released her right, her heirs do not have any right over the suit land. Even no suit was ever filed or any action ever taken by the plaintiffs against Ramchand Sakda. Therefore, even assuming that the plaintiffs had right, the same stands waived and is barred by law as well as by limitation since the possession of the land is with Ramchand Sakda since the year 1969 and therefore, to his wife Gangaben and then to the appellant without any interruption. Further the right released by Ganiben is also supported by individual affidavits all dated 14.2.2010 filed by the respondent Nos.13 to 16 (heirs of deceased Ganiben) before this Court. Therefore, it is proved that the plaintiffs have no right to institute the suit as prayed for since they have no right over the land. 14. Further the right released by Ganiben is also supported by individual affidavits all dated 14.2.2010 filed by the respondent Nos.13 to 16 (heirs of deceased Ganiben) before this Court. Therefore, it is proved that the plaintiffs have no right to institute the suit as prayed for since they have no right over the land. 14. He has submitted that the appellant has proved that the appellant is the adoptive son as per the registered adoption deed dated 6.4.1992 and since it is not disproved the Court shall presume the adoption to be in compliance of the Hindu Adoption Act. Since the adoptive parents have expired and the land in question is owned and possessed by them, the appellant being the adoptive son has only exclusive right, title, interest and possession of the land and the property of the adoptive parents. Hence the appellant is not entitled to the suit land nor an entitled to any other reliefs as prayed for. 15. He has submitted that the trial Court has misinterpreted Section 16 of the Hindu Adoption Act and once having held that even presuming that the adoption is legal and valid even then the adoption deed is not binding to third parties. Further the trial Court has erroneously held that the adoption deed is not between the person giving in adoption and person taking in adoption. The adoption deed at Ex.172 clearly states Gangaben Ramchand as the person taking in adoption and the original parents of the appellant as person giving in adoption and the same is executed by them as well as by the appellant before the SubRegistrar, Palanpur. Further the trial Court erred in law that the onus is on the appellant to prove the rituals. Once there is an adoption deed which recites the said aspects then in view of Section 16, presumption has to be drawn about the said fact and then the onus would be on the plaintiff to disprove which plaintiffs have prayed in present case. 16. Once there is an adoption deed which recites the said aspects then in view of Section 16, presumption has to be drawn about the said fact and then the onus would be on the plaintiff to disprove which plaintiffs have prayed in present case. 16. Mr.S.P.Majmudar, learned counsel for the opponent Nos.1 and 2 has submitted that the present opponent Nos.1, 2 and two others filed Special Civil Suit No.49 of 1992 seeking a declaration that in the suit properties the plaintiffs have share to the extent of 101/560 for land at Revenue Survey No.920/1, 920/2, 923 at Laxmipura Village as well as for the property being House Nos.720, 721 being Revenue Survey No.618/1 comprising of Plot Nos.1, 23, 42, 45, 6164, 6673, 7687 and 9092. The plaintiffs further prayed that the adoption of defendant No.2 by defendant No.1 is illegal and contrary to law. It is the case of the original plaintiffs that all these properties were belonging to Sankala Raichand Dhos, who had four children viz. Ramchand, Gangaben, Ganiben and Laxmiben. Moreover, the original plaintiff No.1 is the legal heir of Gangaben and plaintiff No.2 is the legal heir of Ganiben. It is further submitted that even the name of the mother of plaintiff No.1 is Gangaben. It is submitted that defendant No.1 – Gangaben is wife of Ramchand and would thus be the maternal aunt of the plaintiffs. It is submitted that the suit is essentially seeking partition of the suit properties on the ground that the plaintiffs have share in the suit properties since the suit properties are ancestral properties and belonged to Sankala Raichand Dhos. That the plaintiffs have, inter alia, challenged the adoption of defendant No.2 by Gangaben Ramchand Dhos. 17. He has submitted that the suit is in two parts, one with regard to validation of adoption and the second is with regard to partition of ancestral properties. It is submitted that in the written statement defendant Nos.1 and 2 have, inter alia, stated that they have also become owners of the suit land in question by adverse possession. The same is also stated by Shyamal Dhos in his affidavit under Order XVII Rule 4 of the Code of Civil Procedure, 1908. It is submitted that in the written statement defendant Nos.1 and 2 have, inter alia, stated that they have also become owners of the suit land in question by adverse possession. The same is also stated by Shyamal Dhos in his affidavit under Order XVII Rule 4 of the Code of Civil Procedure, 1908. It is pertinent to note that there is no countersuit for adverse possession filed by defendant Nos.1 and 2 and their stand in the written statement and in the aforesaid affidavit is per se illegal and untenable. 18. He has submitted that the learned trial Court framed as many as 10 issues. Issue No.1 was whether the suit properties are properties of Sankala Raichand Dhos, which has been answered in the affirmative. The learned trial Court has discussed in detail oral as well as documentary evidence in this regard and has further held that since the plaintiffs are legal heirs of Sankala Raichand Dhos, they are entitled for partition. The learned trial Court has thereafter decided shares of each party and all heirs and the same is also reflected in the operative portion of the order of the learned trial Court. It is further submitted that the original defendant Nos.1 and 2 have come out with a case that the mother of the plaintiff Nos.1 and 2 have already relinquished their shares in the suit properties since there was an entry in the revenue record being Entry No.4192 in that regard. However, the learned trial Court has rightly believed that for relinquishment of right in the property entry in the revenue record cannot be termed as ‘conclusive proof’. Entry in the revenue record is only for fiscal purpose. Moreover, there is no family settlement deed or partition deed coming on record. It has rightly been observed by the learned trial Court that relinquishment has to be only by way of registered document and share of Laxmiben and Ganiben could not have been taken away by a mere entry in the revenue record without any registered relinquishment deed. The properties in question have remained ancestral properties and the original plaintiffs would be entitled to have shares in the said ancestral properties, being legal heirs of Sankala Raichand Dhos. This is also substantiated by the judgment of Hon’ble Supreme Court in the case of reported in 2009 (6) S.C.C. 194 . The properties in question have remained ancestral properties and the original plaintiffs would be entitled to have shares in the said ancestral properties, being legal heirs of Sankala Raichand Dhos. This is also substantiated by the judgment of Hon’ble Supreme Court in the case of reported in 2009 (6) S.C.C. 194 . It is further submitted that no statements of Laxmiben and Gangaben made before Talati, have been exhibited as evidence by defendant Nos.1 and 2, despite the fact that the entry records that they had given such statement before the Talati. Moreover, the entires are only with respect to agricultural lands and not for the plots. It is further submitted that even for agricultural lands the entry only shows that names of the mother of plaintiff Nos.1 and 2 are deleted in the revenue record. Even the said entry does not show or substantiate that mothers of plaintiff Nos.1 and 2 have relinquished their right from the said agricultural lands. It is thus crystal clear that all the suit properties are ancestral properties and the plaintiffs have right to claim partition of the suit properties. Thus, the decree for partition has rightly been passed by the learned trial Court. It is further submitted that defendant Nos.1 and 2 have stated in their written statement as well as defendant No.2 has stated in his affidavit under Order XVIII Rule 4 of the C.P.C. that cash amount was paid to Ganiben and Laxmiben and therefore, they or their heirs are not entitled to any share in the suit properties. It is pertinent to note that not a single evidence has been produced by the original defendants to show that such amount was ever paid. Moreover, as stated above, relinquishment can only be by way of a registered deed. 19. It is further submitted that as far as adoption is concerned, the said adoption deed Ex.172 mentions that Shamalbhai, defendant No.2 was adopted by way of oral adoption when he was about 89 years of age. The said adoption deed is registered on 29.5.1992. On that day the age of Shamalbhai was 34 years. It is submitted that as per the provisions of Section 10(iv) of the Hindu Adoption Act such adoption is invalid. The said adoption deed is registered on 29.5.1992. On that day the age of Shamalbhai was 34 years. It is submitted that as per the provisions of Section 10(iv) of the Hindu Adoption Act such adoption is invalid. Section 10(iv) of the said Act is reproduced herein-below; “10 Persons who may be adopted – No person shall be capable of being taken in adoption unless the following conditions are fulfilled, namely (iv) he or she has not completed the age of fifteen years, unless there is a custom or usage applicable to the parties which permits persons who have completed the age of fifteen years being taken in adoption.” In the present case, defendant Nos.1 and 2 have not proved any custom or usage applicable to the parties, which permits such adoption. It is submitted that thus, the adoption is clearly hit by the provisions of the aforesaid Section 10(iv) of the Act. 20. He has further submitted that moreover the adoption is also illegal. Section 11(iv) and (vi) of the aforesaid Act is reproduced herein-below; “11. Other conditions for a valid adoption – (iv) if the adoption is by a female and the person to be adopted is a male, the adoptive mother is at least twentyone years older than the person to be adopted. (vi) the child to be adopted must be actually given and taken in adoption by the parents or guardian concerned or under their authority with intent to transfer the child from the family of its birth or in the case of an abandoned child or a child whose parentage is not known, from the place or family where it has been brought up to the family of its adoption.” It is submitted that in the present case a specific contention has been raised by the original plaintiffs that the adoptive mother is not 21 years older than the person who is being adopted. It is submitted that defendant Nos.1 and 2 have not produced birth certificate of Gangaben to prove her age. They have produced School Leaving Certificate, which cannot prove the age of Gangaben. Moreover, they have produced birth certificate of younger brother of Gangaben and therefore, they could have produced birth Certificate of Gangaben. It is submitted that defendant Nos.1 and 2 have not produced birth certificate of Gangaben to prove her age. They have produced School Leaving Certificate, which cannot prove the age of Gangaben. Moreover, they have produced birth certificate of younger brother of Gangaben and therefore, they could have produced birth Certificate of Gangaben. Therefore, in absence of Birth Certificate of Gangaben the age of Gangaben is not proved and therefore, defendant Nos.1 and 2 have not been able to prove that the adoption is valid under the provisions of Section 11(iv) of the Hindu Adoption Act. Moreover, in the present case there is absolutely no evidence to show that the adopted child is given and taken in adoption by the parents concerned with the intention to transfer the child from the family of its birth to the family of its adoption. Therefore, the adoption is not valid under Section 11(vi) of the Act. It is submitted that the presumption under Section 16 is clearly rebuttable and has been rebutted in the present case. It is pertinent to note that in the cross-examination of defendant No.2 he has admitted that no ceremony of adoption has taken place. Moreover, Shamalbhai in his cross-examination has also admitted that Gangaben Shankalabhai (i.e. mother of plaintiff No.1) has not been given any share from the properties of Shankalabhai. This admission clearly shows that the partition of the suit properties has not taken place and therefore, the suit properties are ancestral properties belonging to Shanklabhai and are required to be partitioned. 21. He has submitted that in the cross-examination of Gangaben (defendant No.1), questions are put to her with regard to validity of the adoption deed. Moreover, it is submitted that Ex.171 is the statement dated 22.5.1992 given by Gangaben before the Talati wherein she has categorically stated that she has no heir and the agricultural land should be mutated in her own name. It is submitted that if the adoption had already taken place on 27.3.1992, Gangaben would not have given statement on 22.5.1992 that she has no heirs. This clearly shows that no adoption has taken place as on 27.3.1992. It is further submitted that in cross-examination Gangaben has also submitted that “Shamalbhai ne datak leva mate koi lakhan thayelu nahi”, which means that there was no written deed with regard to adoption of Shamalbhai. This clearly shows that no adoption has taken place as on 27.3.1992. It is further submitted that in cross-examination Gangaben has also submitted that “Shamalbhai ne datak leva mate koi lakhan thayelu nahi”, which means that there was no written deed with regard to adoption of Shamalbhai. It is submitted that on the basis of such admission of Gangaben the present appeal deserves to be dismissed. Moreover, Gangaben in her cross-examination further says that ceremony had taken place for adoption, but she is not aware as to what ceremony is required for adoption. Moreover, Gangaben has also stated that after death of her husband she is not aware as to whether she has made an application to mutate her name for the lands in question in the revenue record. 22. He has submitted that moreover the plaintiffs had given an application below Ex.209 that since Gangaben had expired and since Gangaben has no heirs and the adoption deed has been got up and created in a fraudulent manner, name of Gangaben should be deleted and no heirs are required to be joined on her behalf. The same was objected by the defendant No.2. However, the learned trial Court on 26.8.2002, passed an order below Ex.209 allowing the said application and the suit was ordered to be abated qua Gangaben. This order dated 26.8.2002 passed below Ex.209 has become final and has not been challenged by defendant No.1 Therefore, neither defendant No.1 nor any other person can claim on behalf of Gangaben, since the suit qua her was ordered to be abated. Once the said order is passed by the Court, which has become final, no other person, including defendant No.1 has any right to claim on behalf of Gangaben. It is submitted that since Gangaben was deleted and suit qua her had abated, defendant No.1 was required to file a countersuit against the present plaintiffs, if at all he wanted to rely upon the socalled adoption deed dated 27.3.1992. It is submitted that mere exhibition of adoption deed does not make the adoption valid and does not make the adoption immune from the provisions of the Adoption Act. 23. He has submitted that the aforesaid evidence clearly shows that the plaintiffs have rebutted the presumption under Section 16 of the Act. It is submitted that mere exhibition of adoption deed does not make the adoption valid and does not make the adoption immune from the provisions of the Adoption Act. 23. He has submitted that the aforesaid evidence clearly shows that the plaintiffs have rebutted the presumption under Section 16 of the Act. It is submitted that the burden of proof had shifted upon defendant No.1 to prove that there was a valid adoption. It is submitted that no evidence has been given by the defendant No.1 after the burden had shifted on him. It is submitted that the defendant No.1 is not entitled to have the benefit of Section 16 of the Act because he has not discharged his onus of proof to prove the validity of adoption after the presumption has been rebutted by the plaintiffs. 24. He has submitted that the contentions of defendant No.1 that affidavit dated 11.2.2009 filed by the original plaintiffs in Civil Application No.552 of 2009 in First Appeal No.215 of 2009 would bind the original plaintiffs is also untenable in law. However, the said affidavit was subsequently withdrawn by filing a fresh affidavit dated 11.10.2009 wherein it is stated that the first affidavit was filed without taking into confidence the other heirs, who are also parties to the suit. 25. He has submitted that the defendant No.1 or defendant No.2 have not examined the author of the adoption deed i.e. the parents of defendant No.2 and in absence of the said, the benefit of Section 16 of the Act is also not available to them and the adoption cannot be treated to have been proved. Moreover, the parents of defendant No.2 are parties to the adoption deed and are the author of the adoption deed and since they have not stepped into the witness box, the adoption itself cannot be treated to have been proved. 26. In support of above submissions Mr.Majmudar has relied on the following decisions: (1) Lakshman Singh Kothari Vs. Smt. Rup Kanwar, AIR 1961 SC 1378 (para10) (2) Mahalingam vs. Kannayyan and Anr., AIR 1990 (Mad.) 333 (Para5) (3) M/s.Kumar Exports vs. M/s.Sharma Carpets, AIR 2009 SC 1518 (para 10), (4) Jai Singh vs. Shakuntala, AIR 2002 SC 1428 (Para6, 11, 13 and 14), (5) Kishori Lal vs. Mt. Smt. Rup Kanwar, AIR 1961 SC 1378 (para10) (2) Mahalingam vs. Kannayyan and Anr., AIR 1990 (Mad.) 333 (Para5) (3) M/s.Kumar Exports vs. M/s.Sharma Carpets, AIR 2009 SC 1518 (para 10), (4) Jai Singh vs. Shakuntala, AIR 2002 SC 1428 (Para6, 11, 13 and 14), (5) Kishori Lal vs. Mt. Chaltibai, AIR 1959 SC 504 (Para 7), (6) Nilima Mukherjee vs. Kanta Bhusan Ghosh, AIR 2001 SC 2725 (Para 6, 89), (7) Madhusudan Das vs. Smt. Narayani Bai and ors., AIR 1983 SC 114 (Para19 and 20) and (8) Dr.Kunal Saha vs. Dr.Sukumar Mukherjee and ors, AIR 2010 SC 1162 (Para 44 and 48). Lastly he has submitted that in view of what is stated hereinabove the present appeal deserves to be dismissed with costs. 27. Mr.Dhaval Vyas, learned counsel for opponent Nos.3 and 4, Mr.Kalpesh T. Gurnani, learned counsel for opponent Nos.3.1 and 4, Mr.Abhaykumar P. Shah, learned counsel for opponent Nos.14 to 16 and Mr.Ankit Y. Bachani, learned counsel for opponent No.18 have adopted the arguments made by Mr.S.P. Majmudar, learned counsel for the opponent Nos.1 and 2. 28. I have heard learned counsel for the respective parties. I have gone through the papers produced in the case. I have also gone through the averments made in the appeal, civil application and the decisions of the Apex Court cited by both the sides. The registered adoption deed was dated 6.4.1992 (Ex.172) and the same was not challenged in cross-examination and when it stands proved and the said document recording the adoption is made which is signed by the person giving and the person taking the child in adoption, the Court shall presume under Section 16 that the adoption has been made in compliance with the provisions of the Hindu Adoption & Maintenance Act, 1956 unless and until it is disproved. The said Section 16 of the Act reads as under : “16. The said Section 16 of the Act reads as under : “16. Presumption as to registered documents relating to adoption – Whenever any document registered under any law for the time being in force is produced before any Court purported 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.” A plain reading of the said section gives the clear indication of the parity of the said presumption with that of the definition ‘shall presume’ provided in the Evidence Act, 1872. Section 4 of the Indian Evidence Act defines may presume and ‘shall presume’ as follows. “4. “May Presume” Whenever it is provided by this Act that the Court may presume a fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it: “Shall Presume”, Whenever it is directed by this Act that the Court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved: ‘Shall Presume’ has been defined saying that whenever it is directed by this Act that the Court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved, whereas ‘May Presume’ has been interpreted saying that whenever it is provided by this Act that the Court may presume a fact, it may either regard such fact as proved unless and until it is disproved, or may call for proof of it. In conformity with the said definition of ‘shall presume’ in the Evidence Act, Section 16 of the Act also used the said expression as: “the court shall presume that the adoption has been made in compliance with the provisions of this Act unless and until it is disproved.” The clear words used in Section 16 of the Act emphatically require that in the event of production of a registered document of adoption, the party challenging the document has to disprove that the adoption has not been made in compliance with the provisions of this Act. The said mandatory clause imposes heave onus on the party challenging the registered adoption deed to disprove the claim of adoption. 29. The said mandatory clause imposes heave onus on the party challenging the registered adoption deed to disprove the claim of adoption. 29. Section 10 of the Act 1956 provides that a child upto the age of 15 years can be taken in adoption. Section 11 therefore prescribes, that in the event that a female adopts a male child, there must be a difference of 21 years between the age of the female and that of the adoptive child. In the event that there is a registered adoption deed, there is a presumption of validity with respect to the said adoption. If these tests are applied, in the present case obviously there was a difference of 21 years between the age of adoptive mother and adoptive male child. Therefore, there is a presumption under Section 16 of the Act 1956, to the effect that the aforementioned adoption has been made in compliance with the provisions of the Act, 1956 until and unless such presumption is disproved. In the event that a person chooses to challenge such adoption, the burden of proof with respect of rebutting the same, by way of procedures accepted by law, is upon him. 30. The appellant has made two fold submissions. In the present case, the appellant was taken in adoption and given in adoption when he was minor and therefore, the appellant is the adoptive son of Ramchand Sakda and Gangaben Sakda, which fact is recited in registered adoption deed dated 6.4.1992. Furthermore the same is supported by the oral evidence of the appellant (Ex.160). The document was produced by the appellant and was proved. The said fact is not disproved by the original plaintiffs except denying the same in their oral deposition. Even Gangaben, who is an adoptive mother, in her deposition has stated that the appellant was adopted at the age of 89 years (Ex.175). The said fact is also supported by the affidavit dated 11.2.2009 submitted by the respondent Nos.14 to 16 – original defendant Nos.11 to 13 admitting therein the fact that the appellant was adopted by Raichand and Gangaben. The respondent Nos.14 to 16 are the grand daughters of Laxmiben, who was daughter of Sakda. The said fact is also supported by the affidavit dated 11.2.2009 submitted by the respondent Nos.14 to 16 – original defendant Nos.11 to 13 admitting therein the fact that the appellant was adopted by Raichand and Gangaben. The respondent Nos.14 to 16 are the grand daughters of Laxmiben, who was daughter of Sakda. Therefore, considering the evidence on record and the fact that the registered adoption deed recited the said fact and considering the fact that the adoption deed is not disproved, I am of the view that the adoption of appellant is legal and valid and this Court under Section 16 presumes that the adoption is made in compliance with the provisions of Hindu Adoption Act. 31. It is submitted that the appellant was not adopted at the age of 89 years, even then, the appellant is legally adopted as on the date of the deed of adoption dated 6.4.1992 in compliance with the provisions of Hindu Adoption Act. That there is a custom and usage which permits a person who has completed the age of 15 years being taken in adoption. The prevailing of such usage and custom is deposed and proved by leading oral evidence of the appellant (Ex.16) as well as of Gangaben (Ex.175) whereas the original plaintiffs have not led oral evidence to show that there is no such usage and custom. Therefore, it becomes clear that there is compliance of Section 10(iv) of the Hindu Adoption Act. Even in view of adoption deed which recites about it, presumption shall have to be made by the Court. It is further submitted that the adoptive mother i.e. Gangaben is more than 21 years older than the appellant and there is compliance of Section 11(iii) of the Hindu Adoption Act. The fact that Gangaben is more than 21 years older than appellant which is substantiated from the following; (a) In the Rojkam prepared by Talaticum Mantri, Palanpur the age of Gangaben is stated to be 60 years (Ex.142). The said Rojkam is prepared on 22.5.1992 and signed by two witnesses as well as by Talaticum Mantri. Therefore, it is clear that she was born in the year 1932; (b) In the oral evidence Ex.175, Gangaben has stated that her age on the date of deposition was 72 years. The said Rojkam is prepared on 22.5.1992 and signed by two witnesses as well as by Talaticum Mantri. Therefore, it is clear that she was born in the year 1932; (b) In the oral evidence Ex.175, Gangaben has stated that her age on the date of deposition was 72 years. She has deposed on 22.3.2007 and therefore, it is clear that she was born in the year 1935; (c) The adoption deed describes the age of Gangaben to be 58 years as on execution of the adoption deed. The adoption deed is executed on 6.4.1992 and therefore, it is clear that she was born in the year 1934; (d) School leaving certificate describing that the birth date of appellant is 1.9.1959. Therefore, considering the fact that Gangaben was born in the year 1935, even then, in view of the fact that the appellant born in the year 1959, there is age difference of 24 years between Gangaben and appellant which is more than 21 years. Therefore, there is compliance of Section 11(iii) of Hindu Adoption Act. Therefore, in view of the registered adoption deed and the fact that it is not rebutted and disproved, the Court presumes that the adoption has been made in compliance with the provisions of the Hindu Adoption Act. 32. It is submitted that the subject land was mutated in the name of deceased Sakda Raichand and on his death on 22.10.1969 the land was mutated in the name of his son Ramchand Sakda and two daughters viz. Ganiben and Laxmiben in the year 1969. The said entry is mutated vide entry bearing No.2247 dated 9.12.1969 which was never challenged by the plaintiffs. In any case Gangaben, daughter of Sakda Raichand had expired in the year 1953. Therefore, her name was not mutated in the village record. Thereafter Ganiben (mother of respondent Nos.2 to 4 – original plaintiff Nos.2 to 4) and Laxmiben released their right over the land on the basis of application and statement. From the record it appears that an entry to that effect was mutated in the village record vide entry bearing No.4162 and the said entry was never challenged by the original plaintiffs nor they have claimed any right and since then the subject land is owned and possessed by Ramchand Sakda. Hence when Laxmiben released her right, her heirs did not have any right over the suit land. Hence when Laxmiben released her right, her heirs did not have any right over the suit land. Even no suit was ever filed nor any action was ever taken by the plaintiffs against Ramchand Sakda. I find that, the appellant has proved that the appellant is the adoptive son as per the registered adoption deed dated 6.4.1992 and since it is not disproved the Court presume the adoption to be in compliance of the Hindu Adoption Act. Since the adoptive parents have expired and the land in dispute is owned and possessed by them, the appellant being the adoptive son, has only exclusive right, title, interest and possession of the land and the property of the adoptive parents. The adoption deed at Ex.172 clearly states Gangaben Ramchand as the person taking in adoption and the original parents of the appellant as person giving in adoption and the same is executed by them as well as by the appellant before the SubRegistrar, Palanpur. 33. I, therefore, find that the trial Court has misinterpreted the provisions of Section 16 of the Hindu Adoption Act and when the trial Court has held that even presuming that the adoption is legal and valid, the adoption deed is not binding to third party more over. The trial Court has erred in holding that the adoption deed is not between the person giving in adoption and the person taking in adoption, whereas the adoption deed Ex.172 shows Gangaben Ramchand as the person taking in adoption and the original parents of the appellant as person giving in adoption and the same was executed by them as also by the appellant before the SubRegistrar Office, Palanpur. I also find that the trial Court has erroneously held that the onus was on the appellant to prove the rituals. Once there is adoption deed which recite the said aspect, then in view of Section 16 presumption has to be drawn about the said fact and then the onus would be on the plaintiff to disprove the same. 34. In view of above, the appeal is allowed. The order dated 24.12.2008 passed by the learned Fourth Additional Senior Civil Judge and Judicial Magistrate First Class, Palanpur, in Special Civil Suit No.49 of 1992 is hereby quashed and set aside. 35. In view of above order, the Civil Application does not survive and is disposed of accordingly. 34. In view of above, the appeal is allowed. The order dated 24.12.2008 passed by the learned Fourth Additional Senior Civil Judge and Judicial Magistrate First Class, Palanpur, in Special Civil Suit No.49 of 1992 is hereby quashed and set aside. 35. In view of above order, the Civil Application does not survive and is disposed of accordingly. After the pronouncement of the judgment Mr.Majmudar, learned advocate for the respondent Nos.1 and 2 prays for stay of this judgment for eight weeks. Mr.Hitesh Patel, learned advocate appearing for Mr.Vimal Patel, for the appellant has strongly opposed prayer made by Mr.Majmudar, learned advocate for the respondent Nos.1 and 2. Operation and implementation of present judgment is stayed for a period of six weeks. Appeal allowed.