JUDGMENT : 1. Heard the parties. 2 This Second Appeal under Section 100 of the Code of Civil Procedure has been filed by the plaintiff-appellant being aggrieved by the Judgment and decree dated 15.01.1999 passed by the 1st Additional District Judge, Godda in Title Appeal No. 8 of 1997/25 of 1998 whereby and where under, the learned 1st Additional District Judge, Godda has dismissed the appeal and confirmed the judgment and decree of the learned trial court. 3 The brief facts of the case of the plaintiff is that the plaintiff was made to execute a deed of adoption dated 01.04.1991 fraudulently thereby adopting the defendant no.1 as her son. It is the case of the plaintiff that she was taken to the Registration Office in the guise of executing deed of Bhugatbandha (a kind of usufructuary mortgage) for a period of 6 years in consideration for being paid Rs.300/- to meet the requirement of her medical expenses which she was badly in need of. It is further the case of the plaintiff that she was not permitted to read the contents of the deed of adoption executed by her and her left thumb impression was hurriedly taken by saying that the registration has been called out and there was paucity of time and subsequently the plaintiff also executed the deed of cancellation of the said adoption deed by a separate deed dated 08.10.1991. 4 The case of the defendant nos. 1, 2 & 3 who have been mentioned as defendant first party in the plaint is that there was a valid adoption of the defendant no.1 by the plaintiff and the deed was duly executed. In the suit the following prayers were made:- (a) It be declared that plaintiff never adopted defendant no.1 and no ceremony of give and take took place and that she never executed adoption deed along with defendant no. 2 & 3. (b) It be declared that deed of adoption dated 01.04.1991 purporting to be executed by plaintiff was prepared due to fraud and misrepresentation on plaintiff by defendant no.2 –Sujadhar Jadab and the same is void, illegal and inoperative and confers no title on defendant no.1 as being adopted son of plaintiff or her husband. (c) That the deed of adoption no.26 dated 01.04.1991 of Godda Registration Office be cancelled. (d) Cost of suit be awarded to plaintiff. (c) That the deed of adoption no.26 dated 01.04.1991 of Godda Registration Office be cancelled. (d) Cost of suit be awarded to plaintiff. (e) Any other relief or reliefs the court thinks fit to be awarded to plaintiff. 5. Both the learned courts below have given a concurrent finding of facts that the adoption deed was validly and duly executed by the plaintiff, hence the trial court dismissed the suit and the appeal was also dismissed by the learned first appellate court. At the time of admission of the appeal the following substantial questions of law were framed by the predecessor judge:- 1. “Whether in absence of any custom or usage applicable to the parties, defendant no.1, who was said to be more than 15 years’ old at the time of adoption can be said to have been legally adopted? 2. Whether it was defendants’ onus to prove that his vendor, are rustic- pardanasin lady had knowledge of the nature of deed (Exhibit A/1) she has executed?” 6. So far as the first substantial question of law is concerned, Mr. Rahul Gupta, learned counsel for the appellant submits that the evidence in the record put forth by the plaintiff is the Ext.4 which is the admission register of the Primary Girls School, Amlo is sufficient to establish that the defendant no.1 of the suit was more than 15 years of age at the time of his alleged adoption on 01.04.1991 and in view of the specific bar in Clause –(iv) of Eligibility Conditions for a person to be adopted as envisaged under Section 10 of Hindu Adoption and Maintenance Act, 1956. It is submitted that since the defendant no.1 was more than 15 years on the date of alleged adoption, his alleged adoption by the plaintiff is otherwise not valid and the courts below ought to have considered the same. So far as the second substantial question of law is concerned, Mr. Rahul Gupta relied upon the judgment of Hon’ble Supreme Court in the case of Mst. Kharbuja Kuer vs. Jangbahadur Rai and Others reported in AIR 1963 SC 1203 wherein in paragraph no.5 & 6 the Hon’ble Supreme Court has held as under:- “5. It is settled law that a High Court has no jurisdiction to entertain a second appeal on the ground of erroneous finding of fact. Kharbuja Kuer vs. Jangbahadur Rai and Others reported in AIR 1963 SC 1203 wherein in paragraph no.5 & 6 the Hon’ble Supreme Court has held as under:- “5. It is settled law that a High Court has no jurisdiction to entertain a second appeal on the ground of erroneous finding of fact. In the instant case the learned Munsif and, on appeal, the learned Subordinate Judge found concurrently that the two widows put their thumb marks without understanding the true import of the document. Imam, J., in second appeal reversed the said findings on the ground that they were vitiated by an erroneous view of the law in the matter of burden of proof. The judgment, if we may say so with respect, consists of propositions which appear to be contradictory. The learned Judge, after reviewing the case law on the subject, concludes his discussion by holding that it was the duty of the plaintiff to prove that there was fraud committed and that, as that had not been established, the question whether the document was read over and explained to the plaintiff, in his opinion, in the circumstances, did not arise. The proposition, in our view, is clearly wrong and is contrary to the principles laid down by the Privy Council in a series of decisions. In India paradahnashin ladies have been given a special protection in view of the social conditions of the times; they are presumed to have an imperfect knowledge of the world, as by the pardah system they are practically excluded from social intercourse and communion with the outside world. In Farid-Un-Nisa v. Mukhtar Ahmad, 52 Ind App 342 at p. 350: ( AIR 1925 PC 204 at p. 209), Lord Summer traces the origin of the custom and states the principle on which the presumption is based. The learned Lord observed : "In this it has only given the special development, which Indian social usages make necessary, to the general rules of English law, which protect persons, whose disabilities make them dependent upon or subject them to the influence of others, even though nothing in the nature of deception or coercion may have occurred. The learned Lord observed : "In this it has only given the special development, which Indian social usages make necessary, to the general rules of English law, which protect persons, whose disabilities make them dependent upon or subject them to the influence of others, even though nothing in the nature of deception or coercion may have occurred. This is part of the law relating to personal capacity to make binding transfers or settlements of property of any kind." The learned Lord also points out: "Of course fraud, duress and actual undue influence are separate matters." It is, therefore, manifest that the rule evolved for the protection of pardahnashin ladies shall not be confused with other doctrines, such as fraud, duress and actual undue influence, which apply to all persons whether they be pardahnashin ladies or not. 6. The next question is what is the scope and extent of the protection. In Geresh Chunder Lahoree v. Mst. Bhuggobutty Debia, 13 Moo Ind App 419 (PC) the Privy Council held that as regards documents taken from pardahnashin women the court has to ascertain that the party executing them has been a free agent and duly informed of what she was about. The reason for the rule is that the ordinary presumption that a person understands the document to which he has affixed his name does not apply in the case of a paradahnashin woman. In Kali Baksh v. Ram Gopal, 43 Ind App 23 at p. 29 (PC), the Privy Council defined the scope of the burden of a person who seeks to sustain a document to which a pardahnashin lady was a party in the following words : "In the first place, the lady was a pardahnashin lady, and the law throws round her a special cloak of protection. It demands that the burden of proof shall in such a case rest, not with those who attack, but with those who found upon the deed, and the proof must go so far as to show affirmatively and conclusively that the deed was not only executed by, but was explained to, and was really understood by the grantor. It demands that the burden of proof shall in such a case rest, not with those who attack, but with those who found upon the deed, and the proof must go so far as to show affirmatively and conclusively that the deed was not only executed by, but was explained to, and was really understood by the grantor. In such case it must also, of course, be established that the deed was not signed under duress, but arose from the free ant independent will of the grantor." The view so broadly expressed, though affirmed in essence in sub-sequent decisions, was modified, to some extent, in regard to the nature of the mode of discharging the said burden. In 52 Ind App 342 at p. 352: (AIR 1925 PV 204 at p. 210) it was stated : "The mere declaration by the settler, subsequently made, that she had not understood what she was doing, obviously is nojddszt in itself conclusive. It must be a question whether, having regard to the proved personality of the settler, the nature of the settlement, the circumstances under which it was executed, and the whole history of the parties, it is reasonably established that the deed executed was the free and intelligent act of the settler or not. If the answer is in the affirmative, those relying on the deed have discharged the onus which rests upon them." While affirming the principle that the burden is upon the person who seeks to sustain a document executed by a pardahnashin lady that she executed it with a true understanding mind, it has been held that the proof of the fact that it has been explained to her is not the only mode of discharging the said burden but the fact whether she voluntarily executed the document or not could be ascertained from other evidence and circumstances in the case. The same view was again reiterated by the Judicial Committee. through Sir George Rankin, in Hem Chandra v. Suradhani Debya, AIR 1940 PC 134 . Further section is unnecessary. The legal position has been very well settled. Shortly it may be stated thus: The burden of proof shall always rest upon the person who seeks to sustain a transaction entered into with a pardahnashin lady to establish that the said document was executed by her after clearly understanding the nature of the transaction. Further section is unnecessary. The legal position has been very well settled. Shortly it may be stated thus: The burden of proof shall always rest upon the person who seeks to sustain a transaction entered into with a pardahnashin lady to establish that the said document was executed by her after clearly understanding the nature of the transaction. It should be established that it was not only her physical act but also her mental act. The burden can be discharged not only by proving that the document was explained to her and that she understood it, but also by other evidence, direct and circumstantial.” (Emphasis Supplied) And submitted that the first appellate court erred by shifting the onus of proving the allegation of fraud or misrepresentation upon the plaintiff was erroneous and the second limb of argument of Mr. Gupta was that since there was no specific pleading of the defendants first party in their written statement that the deed was scribed at the instance of the plaintiff and it was read over and explained to her and then she put her left thumb impression and hence the consideration of the said portion of the evidence by the learned court below in arriving at a finding is an act of perversity. In support of his contention, Mr. Gupta, learned counsel for the appellant relied upon the judgment of Hon’ble Supreme Court in the case of Arulvelu v. State reported in (2009) 10 SCC 206 wherein, the Hon’ble Supreme Court has held in paragraph no. 26 as under:- “26. In M.S. Narayanagouda v. Girijamma the Court observed that any order made in conscious violation of pleading and law is a perverse order. In Moffett v. Gough the Court observed that a “perverse verdict” may probably be defined as one that is not only against the weight of evidence but is altogether against the evidence. In Godfrey v. Godfrey the Court defined “perverse” as turned the wrong way, not right; distorted from the right; turned away or deviating from what is right, proper, correct, etc.” Mr. Rahul Gupta has also relied upon the Judgment of Hon’ble Supreme Court in the case of Municipal Committee, Hoshiarpur v. Punjab SEB reported in (2010) 13 SCC 216 : (2010) 4 SCC (Civ) 861 wherein in the Hon’ble Supreme Court in paragraph no. 28 has held as under:- “28. Rahul Gupta has also relied upon the Judgment of Hon’ble Supreme Court in the case of Municipal Committee, Hoshiarpur v. Punjab SEB reported in (2010) 13 SCC 216 : (2010) 4 SCC (Civ) 861 wherein in the Hon’ble Supreme Court in paragraph no. 28 has held as under:- “28. If a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or if the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then the finding is rendered infirm in the eye of the law. If the findings of the Court are based on no evidence or evidence which is thoroughly unreliable or evidence that suffers from the vice of procedural irregularity or the findings are such that no reasonable person would have arrived at those findings, then the findings may be said to be perverse. Further if the findings are either ipse dixit of the Court or based on conjecture and surmises, the judgment suffers from the additional infirmity of non-application of mind and thus, stands vitiated. (Vide Bharatha Matha v. R. Vijaya Renganathan.)” Hence, it is submitted that the impugned judgment and decree passed by the first appellate court is perverse as the findings thereof has been arrived at relying upon the oral evidence regarding which there was no pleading, hence it is submitted that the judgment and decree passed by the courts below be set aside and the suit of the plaintiff be decreed. 7. So far as the first substantial question of law is concerned, Mr. J.P. Jha, the learned Senior Advocate appearing for the respondents submits that Ext. 4 does not contain the name of the school of which the said register was and in paragraph no.19 of the impugned judgment, the learned first appellate court has given cogent reasons for discarding the said evidence, hence the findings of fact of the learned first appellate court cannot be termed perverse or based on no evidence. So far as the second substantial question of law is concerned, Mr. J.P. Jha, the learned Senior Advocate submits that in the adoption deed marked Ext. So far as the second substantial question of law is concerned, Mr. J.P. Jha, the learned Senior Advocate submits that in the adoption deed marked Ext. A/1, it has been categorically mentioned that the contents of the same was read over and explained to the plaintiff and in their written statement the defendants have categorically pleaded that the said adoption deed marked Ext. A/1 was duly and validly executed by the defendants. So it is obvious that the evidence led by the defendants which was not objected to at the time of the same being led for being beyond pleading and certainly is the evidence which relates to the pleading that the adoption deed marked Ext. A/1 was duly executed and what the Code of Civil Procedure requires is that it is only the facts which is to be pleaded and not the evidence, hence it is submitted that there is no perversity by the courts below in considering the said part of the evidence. It is then submitted that admittedly the plaintiff executed a registered deed of adoption and relying upon Section 16 of the Hindu Adoption and Maintenance Act, 1956 and it was submitted that Section 16 envisages that there shall be a presumption that the adoption has been made in compliance with the provision of the Act, unless and until it is disproved. So obviously, since it is the admitted case of the plaintiff that she executed the adoption deed, the onus was upon the plaintiff to disprove the adoption. In support of his contention learned Senior Advocate has relied upon the judgment of Hon’ble Supreme Court in the case of Raushan Devi vs. Ramji Shah & others reported in (2002) 10 SCC 205 wherein, the Hon’ble Supreme Court has held in paragraph no.6 as under:- “6. The learned counsel appearing for the appellant strenuously urged that the finding of the Trial Court on the lack of consent of the plaintiff to the adoption should not have been disturbed by the First Appellate Court. We are unable to accept the said contention. The learned counsel appearing for the appellant strenuously urged that the finding of the Trial Court on the lack of consent of the plaintiff to the adoption should not have been disturbed by the First Appellate Court. We are unable to accept the said contention. The matter is essentially one of fact on which the First appellate Court, which is the final Court of fact, has recorded a specific finding based on the evidence on record that the plaintiff had given her consent to the proposed adoption and that the requirement of giving and taking for a valid adoption having been fulfilled the adoption cannot be said to be invalid on any count. It is not disputed before us that once the adoption is held to be valid, subsequent execution of the deed of cancellation, does not affect the status of the adopted son. In such circumstances, no exception can be taken to the High Court dismissing the second appeal holding that the appellant has not been able to formulate any question of law involved in the appeal. Therefore, this appeal being devoid of merit is dismissed. There will be no order for cost.”(Emphasis Supplied) Mr. J.P. Jha also relied upon the Judgment of Hon’ble Allahabad High Court in the case of Baru (since deceased) and another vs. Tej Pal and others reported in AIR 1998 ALLAHABAD 230 wherein in the Hon’ble High Court in paragraph no. 10 has held as under:- “10. The second point for determination is whether the requisite ceremonies for adoption were performed or not. On this ground adoption deed cannot be challenged. The adoption deed is a registered document. Its due execution and registration were proved from the evidence adduced by the defendants. At this juncture presumption available under Section 16 of the Hindu Adoptions and Maintenance Act, 1956 can safely be drawn. Section 16 of the aforesaid Act reads as under: "16. On this ground adoption deed cannot be challenged. The adoption deed is a registered document. Its due execution and registration were proved from the evidence adduced by the defendants. At this juncture presumption available under Section 16 of the Hindu Adoptions and Maintenance Act, 1956 can safely be drawn. Section 16 of the aforesaid 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 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." It is thus clear from this section that once a registered adoption deed is produced before any Court recording the factum of adoption and it 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. The presumption at the first place is conclusive, but it is rebuttable provided the deed of adoption is disproved. Once a registered deed of adoption was filed, the duty was not of propounder to establish the due execution and registration of the deed. In the adoption deed itself it is mentioned that ceremonies for adoption were performed. The adoption-deed bears signatures of Tej Pal and Yadram. Tej Pal is the father of Sadhu, the adopted child. Yadram was the person who took the child in adoption. It is clearly mentioned that 16 days before the execution of the deed of adoption requisite ceremonies including feasts etc. were performed. In such circumstances, heavy burden lay on the plaintiffs-appellants to disprove the deed of adoption and also disprove that ceremonies were not performed. Simply because Pandit was not examined presumption available and flowing from recitals the adoption deed cannot be negatived nor it can be disproved that no ceremonies were performed. Pandit could be examined by the plaintiffs on whose shoulder the burden lay to prove the factum of adoption, performance of the ceremonies of adoption and proof of due execution and registration of the adoption deed.” Mr. Pandit could be examined by the plaintiffs on whose shoulder the burden lay to prove the factum of adoption, performance of the ceremonies of adoption and proof of due execution and registration of the adoption deed.” Mr. J.P. Jha has also relied upon the Judgment of Coordinate Bench of this Court in the case of Ramji Mahto @ Kodo Khirhar vs. Murlidhar Yadav reported in [ 2005 (3) JCR 226 (Jhr)] wherein in the Coordinate Bench of this Court has held in paragraph no. 7 as under:- “7. …. ….. …… Further, the learned appellate Court committed an error in setting aside the Ext. 1 which is a registered deed of adoption, whereas the learned appellate Court accepted Ext. A when DW 1 has deposed against the recitals in the deed of adoption executed on 8.1.1982 and, therefore, since this evidence is contrary to the recitals in the Ext. A which is a deed of adoption, hence his evidence should not have been accepted by the appellate Court, but unfortunately the appellate Court has accepted the evidence of DW 1 and found the Ext. A a valid one. … ….. ……” It is further submitted by learned Senior Advocate that the first appellate court has also considered the settled principle of law in paragraph no.16 of the impugned Judgment that the onus is on the defendants to prove that the plaintiff who is an illiterate lady has put her left thumb impression on the deed after fully understanding the same and in fact the deed was read over and explained to her and being conscious of the settled principle of law and proper appreciation of the evidence in the record being the final Court of fact having arrived at a conclusion which is not a case which warrants interference of this Court in concurrent finding of fact of both the courts below in exercise of its jurisdiction under Section 100 of the Code of Civil Procedure. First Substantial question of law 8. So far as the first substantial question of law is concerned, Section 10 of the Hindu Adoption and Maintenance Act, 1956 envisages that if a person has completed the age of 15 years, he is not eligible for adoption unless there is custom or uses applicable to the parties which permits adoption of a person who have completed the age of 15 years for being taken in adoption. After going through the record, I find that it was pleaded by the plaintiff that the defendant no.1 was aged 15 years on the relevant date which was denied by the defendants and according to the defendants the age of the defendant no.1 was 10 years on the date of adoption. Obviously the burden was upon the plaintiff to establish the same. In order to prove the said fact, the plaintiff relied upon the Ext. 4 which is the Admission Register of the school which does not even bear the name of the school and there are certain shortcomings as already indicated above in the impugned judgment of the first appellate court. Further in the deed of adoption marked as Ext. A/1 also the age of defendant no.1 at the time of execution of the said adoption deed has been marked as 10 years. Under such circumstances, though it is a settled principle of law that in the absence of any custom or uses applicable to the parties, the defendant no.1 would not have been eligible for adoption had he been more than 15 years old but in view of the evidence in record, the finding of the first appellate court that the evidence in record is insufficient to establish that he was more than 15 years old cannot be termed as a perverse finding. Hence, the same do not warrant any interference, the first substantial question of law is answered accordingly. Second Substantial question of law 9. So far as the second substantial question of law is concerned, it is a settled principle of law as has been held by the Hon’ble Supreme Court of India in the case of Mst. Kharbuja Kuer vs. Jangbahadur Rai and Others (supra) that as regards to documents taken from pardahnashin women the court has to ascertain that the party executing them has been a free agent and duly informed of what she was doing about and the learned first appellate court in paragraph-16 has also relied upon the said principle of law and being conscious of the law in this respect and the fact of the case, learned court below considering the presumption regarding the adoption in view of registered deed of adoption as envisaged under Section 16 of Hindu Adoption and Maintenance Act, 1956 which 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 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.” It has come to a conclusion that the evidence in record is insufficient to establish that the plaintiff did not execute the deed of adoption. The onus was certainly upon the defendants to prove that the executant of the deed of adoption being the Pardanasin lady has knowledge of the nature of deed, she has executed but after going through the judgment of the learned first appellate court, this Court is of the considered view that certainly the finding of facts arrived at by the learned courts below that the evidence in record is insufficient to establish that the plaintiff who was the executant of the adoption deed was not having knowledge of the nature of deed in the facts and circumstances of the case cannot be termed as perverse. The second substantial question of law is answered accordingly. 10. In view of the discussion made above, this second appeal being without any merit is dismissed but in the circumstances without any costs. 11. Let the Lower Court Record be sent back to the learned court below along with a copy of this Judgment forthwith. Appeal dismissed.