JUDGMENT : 1. Under challenge is the judgment & decree dated 4.9.1989 passed by the Additional District Judge No. 3, Kota (hereinafter referred to as ‘trial court’) whereby the learned ‘trial court’ dismissed the suit filed by the plaintiff-appellant. Against the said judgment & decree, the instant first appeal has been filed by the plaintiff-appellant. FACTS IN BRIEF 2. The facts leading to the instant first appeal may be summarised as thus: That the plaintiff-appellant whose husband passed away in 1979, is a resident of Kota. The defendant respondent 2 is the brother-in-law of the plaintiff-appellant. It is alleged that respondent no. 2, after the death of his brother (who was the husband of the plaintiff) started misguiding the plaintiff that her properties would be taken over by the government in case she died without leaving any son behind. Respondent no. 2 further allegedly mislead the plaintiff by suggesting her a way out to save her properties by executing a will in favour of defendant respondent 1, who is the son of respondent 2. In furtherance of the same, respondent no. 2 took the plaintiff to the local court and asked the plaintiff-appellant to sign over the document, which he stated to be a Will. The plaintiff-appellant signed over the document without reading the contents thereof since she is an illiterate woman. Subsequent to this, respondent no. 2 on 1.6.1981 went to the plaintiffs house and told her that respondent no. 1 had become her son as she had taken respondent no. 1 in adoption. Smelling a rat, the plaintiff-appellant obtained a certified copy of the document on 8.6.1981 and she got to know the respondent, having taken advantage of plaintiff’s illiteracy made her sign on an Adoption Deed instead of a Will. The plaintiff filed a suit in order to get the document declared null and void. The trial court dismissed the suit against the same, the instant first appeal is preferred on a number of grounds inter alia that the Adoption Deed was null and void, the adoption was not valid since there was no giving and taking of the adopted son, that the adopted son i.e. respondent 1 was above 15 years and there was no custom in the plaintiffs community which allowed adoption of a child above 15 years, that no formalities which are essential for a valid adoption were performed at all. The defendant-respondent resisted the suit by filing the written statement wherein they denied the said facts stated by the plaintiff-appellant in the plaint. The learned trial court framed the following issues:- ¼1½ vk;k oknuh ls izfroknh la[;k 2 us izfroknh ua0 1 ds gd esa olh;rukesa dh dg dj tks xksnukek fy[kk;k o jftLVªh djk;k gS og diViw.kZ o voS/kkfud rjhds ls fu"ikfnr djk;k x;k gS ,oa oknuh okni= ds iSjk ua0 4 o 6 ¼v½ rk 6@3 esa mYysf[kr dkj.kksa ls mRlkfjr o fujLr djkus dh vf/kdkj.kh gS \ ¼2½ vk;k rudh ua 1 cgd oknuh r; gks rks og izfroknh ua0 1 ds f[kykQ okni= ds iSjk ua 11@2 esa mYysf[kr fu"ks/kkKk izkIr djus dh vf/kdkj.kh gS \ ¼3½ vk;k oknuh us LosPNk ls vius ifr dh bPNkuqlkj izfroknh ua0 1 dks xksn fy;k gSA vr% og xksnukes dks pqukSrh nsus eas v{ke gS \ ¼4½ nknjlh A SUBMISSION OF COUNSELS 3. Mr. N.K. Maloo, learned senior counsel appearing on behalf of the plaintiff-appellants has contended that the Adoption Deed through which Respondent no. 1 was said to have been given in adoption to the plaintiff was null and void since the plaintiff appellant had signed it mistaking it for a Will and if it had not been for the inducements by Respondent 2, she would not have signed it. Mr. Maloo further contended that even if the Adoption Deed was found to be proved, the adoption itself was not valid for a number of reasons. First, there was no giving and taking as required for every adoption. To buttress his submission, Mr. Maloo relied on the judgment of the Supreme Court in the case of Jai Singh v. Shakuntla, (2002) 3 SCC 634 . Second, the natural mother of the child was not consented before Respondent 1 was given in adoption. In the absence of consent by one of the parents, the adoption is not valid in view of Section 11(vi) of the Hindu Adoption and Maintenance Act, 1956. Mr. Maloo relied on the judgment by a coordinate bench of this court in the case of Deen Dayal v. Sanjeev Kumar, AIR 2009 Raj 122 . In the absence of consent by one of the parents, the adoption is not valid in view of Section 11(vi) of the Hindu Adoption and Maintenance Act, 1956. Mr. Maloo relied on the judgment by a coordinate bench of this court in the case of Deen Dayal v. Sanjeev Kumar, AIR 2009 Raj 122 . Third, the adopted child i.e. Respondent 1 was over 15 years of age in this case and as per Section 10 (iv) of the Hindu Adoption and Maintenance Act, 1956 a child above the age 15 years cannot be taken in adoption unless a custom permitting the same is applicable to the parties. Mr. Maloo relied on several judgment is including Bhimashya and others v. Janabi, (2006) 13 SCC 627 and Harnek Singh v. Pritam Singh and others, (2013) 4 SCC 458 . Fourth, the trial court erred in relying upon the testimonies of the respondents and their witnesses as they were close relatives of the respondent. 4. On the other hand, Mr. Sanjay Mahrishi learned counsel for the respondents contended that the Adoption Deed was valid and the plaintiff-appellant had signed it and so did the attesting witnesses. Since, there was a registered Adoption Deed, a presumption of a valid adoption should be made in view of Section 16 of the Hindu Adoption and Maintenance Act, 1956. To support his contentions, the counsel relied on Atluri Brahmandanam v. Anne Sai Bapuji, AIR 2011 SC 545 , Amar Singh v. Tej Ram and Another, AIR 1982 P&H 282 and Musi Dei v. Labanya Bewa and Another, AIR 1986 Orissa 242. I have considered the rival submissions made by the learned counsel for the parties. The plaintiff has filed an application u/o 41 Rule 27 C.P.C. stating therein that in the obituary of Smt. Gomti Devi Jhalani who was the natural mother of respondent no. 1, the name of respondent no. 1 was mentioned as the son of respondent no. 2 and deceased Gomti Devi. Thus it was prayed that said obituary be taken on record as additional evidence. Having regard to the contents of the application and the reply thereto application is dismissed. ISSUES TO BE DETERMINED 5. There are two major issues that arise for consideration in the instant matter. 2 and deceased Gomti Devi. Thus it was prayed that said obituary be taken on record as additional evidence. Having regard to the contents of the application and the reply thereto application is dismissed. ISSUES TO BE DETERMINED 5. There are two major issues that arise for consideration in the instant matter. (a) Whether the Adoption Deed through which Respondent No. 1 was allegedly given in adoption to the plaintiff-appellant was executed by the plaintiff or not? (b) If it is proved that the Adoption Deed was executed by the plaintiff were the requirements of a valid adoption fulfilled in the instant case. ISSUE 1 The first issue which needs to be decided is whether Adoption Deed in question was executed by the plaintiff or not. In the plaint, it has been stated that the plaintiff-appellant signed the document in question believing it to be a Will as was told to her by Respondent 2. It has also been alleged that if it had not been for the assurances by Respondent 2 that the document was indeed a Will, the plaintiff-appellant would have never signed it. After perusing the material on record and going through the judgment s cited by both sides, I am of the considered view that the respondents have been able to prove that the (Ex-1) document was executed by the plaintiff-appellant. The burden of proof to challenge the Adoption Deed and proving that it was not properly executed was upon the plaintiff-appellant. The plaintiff appellant has failed to explain satisfactorily as to why she put her signatures on the document, despite being suspicious about it. It is undisputed that the Adoption Deed was written on 25.3.1981 but it was registered on the next day i.e. 26.3.1981. In other words, the plaintiff-appellant had ample time to get the contents of documents verified and read out to her but she failed to do so. My opinion is further strengthened by the judgment of Orissa High Court in the case of Musi Devi (Supra) wherein it was held that if the document in question is written and executed on different dates, that itself would militate against the executant's theory of fraud or misrepresentation since he/she is such a case the executants would have enough time to read the contents thereof. Further, it has not been satisfactorily explained by the plaintiff-appellant as to why her both her daughters, despite being literate and educated put their signatures on the document without reading the contents thereof. Furthermore, it has also been stated by (D.W. 3) that the document in question was executed by the plaintiff-appellant and its contents were read out to him and on this point his testimony has not been shaken in the cross examination. Thus, it is proved that the plaintiff executed (Ex-1) adoption deed. ISSUE 2 The next issue that arises for consideration is whether the alleged adoption of Respondent 1 by the plaintiff-appellant was valid or not. Elaborate arguments have been made from both sides. It is true as contended by the respondents that as per Section 16 of the Hindu Adoption and Maintenance Act, 1956 a presumption of a valid adoption would be made in cases where a registered document containing the signature of the person giving and taking the child is produced before the court. However, this is a rebuttable presumption as held by the Supreme Court in Jai Singh (Supra). In my opinion, the plaintiff-appellant have been able to rebut this presumption for a number of reasons. First, for a valid adoption to be made, the consent of both the parents is essential as required by Section 11(vi) of the Hindu Adoptions and Maintenance Act, 1956. The Section uses the word “parents” instead of “parent” which means that the consent of both the natural mother and father is essential. This has also been noted by a coordinate bench of this court in Deen Dayal (supra). For this purpose, consent of the natural mother should either be in writing or reflected by a positive act done voluntarily and willingly. Just because there is a recital in the adoption deed that the consent of the natural mother was taken would not prove that it was indeed taken, more particularly when the adoption deed does not bear the signature of the natural mother. In the instant case, there is nothing to prove that the consent of the natural mother of Respondent 1 was taken. She neither accompanied Respondent 2 when the Adoption Deed was registered nor was she called in the witness box to testify that her consent was indeed taken. In the instant case, there is nothing to prove that the consent of the natural mother of Respondent 1 was taken. She neither accompanied Respondent 2 when the Adoption Deed was registered nor was she called in the witness box to testify that her consent was indeed taken. Secondly it is also essential for a valid adoption that the child must be given and taken by the natural parents and the adoptive parents. This giving and taking ceremony is essential for a valid adoption as observed by the Supreme Court in Lakshman Singh v. Smt. Rup Kanwar, AIR 1961 SCC 1378. The Hon’ble Apex court observed as follows : 10 “Under the Hindu Law, whether the regenerate caste or among, Sudras, there cannot be a valid adoption unless the adoptive boy is transferred from one family to another and that can be done only by the ceremony of giving and taking. The object of the corporeal giving and receiving in adoption is obviously to secure due publicity. To achieve this object it is essential to have a formal ceremony. No particular form is prescribed for the ceremony, but the law requires that the natural parent shall band over the adoptive boy and the adoptive parent shall receive him. The nature of the ceremony may vary depending upon the circumstances of each case. But a ceremony there shall be, and giving and taking shall be part of it. The exigencies of the situation arising out of diverse circumstances necessitated the introduction of the doctrine of delegation; and therefore, the parents, after exercising their volition to give and take the boy in adoption, may both or either of them delegate the physical act of handing over the boy or receiving him, as the case may be, to a third party.” In this case, there is no evidence on record to prove that ceremony of giving and taking was performed. There is nothing on record to suggest that the child i.e. Respondent 1 was actually given and taken by her natural parents and adoptive parents respectively. In the absence of a formal giving and taking ceremony, the adoption cannot said to be valid. Further in order to prove that the adoption is valid it is essential that the adopted son must associate himself with his adoptive parents rather than natural parents. There is nothing on record to show that respondent no. In the absence of a formal giving and taking ceremony, the adoption cannot said to be valid. Further in order to prove that the adoption is valid it is essential that the adopted son must associate himself with his adoptive parents rather than natural parents. There is nothing on record to show that respondent no. 1 was treated as an adopted son by the plaintiff or that respondent no. 1, associated himself with the plaintiff rather than his natural parents. Thirdly as per Section 10(iv) of the Hindu Adoption and Maintenance Act, 1956, a child who has completed the age of fifteen years cannot be adopted until and unless exists a custom in the community of parties which permit it. A custom is particular rule that has existed from time immemorial and entrenched in the culture of society or community to which the parties belong. A custom to be valid must have four essential attributes as laid down by the Supreme Court in Bhimshya (Supra). First, it must be time immemorial which means that it must exist from ancient times. Second, the custom in question must have been followed without interruption. If there is a discontinuity or if the community adopts a different rule for however short a period of time, the custom cannot be valid. Third, the custom must be reasonable. Fourth, it must be certain and definite. As per the provisions of the Hindus Adoptions and Maintenance Act, 1956, the burden of proof to prove that a valid custom exists is on the person who relies on it and since it is an exception, there cannot be any presumption for its existence, legal or otherwise (Mahalingam v. Kannayan & Ors, AIR 1990 Madras 333). Coming to the facts of the present case, I am of the firm opinion that the respondents have failed to prove that there existed a custom permitting the adoption of a child above the age of fifteen years in the community to which the plaintiff-appellant belongs. The trial court, relying solely on the testimonies of the Respondents and their witnesses (D.W. 4) Surajmal and (D.W. 5) Banshilal, came to the conclusion that there existed a custom permitting the adoption of children above fifteen years of age in the community of plaintiff and respondents. There has not been a single proof or evidence to corroborate the existence of such custom. There has not been a single proof or evidence to corroborate the existence of such custom. Hence, the adoption was not valid on this count also. The judgments relied upon by the Respondents will be of no help to them. The respondents have relied on two judgment s to contend that the adoption was a valid one. The first was the decision of the Supreme Court in Atluri Brahmanandam (Supra). In this case, the Hon’ble Supreme Court, while replying on the evidence adduced observed that there existed a custom in the community of parties permitting adoption of child above the age of 15 years. I have already observed that in the absence of evidence, it cannot be said that there was such a custom in the community of parties in the instant case as well. The respondents next relied on the judgment rendered by the Punjab and Haryana High Court in Amar Singh (Supra). In this case, the court had observed that upon the production of registered adoption deed in the court, a presumption of a valid adoption would be made in favour of the defendants and it would be the duty of the plaintiffs to challenge the same. In the instant case, the plaintiff-appellant has been able to rebut this presumption. Hence, the said judgment is also not applicable to the facts of this case. In view of the above, this first appeal is allowed. The judgment and decree dated 4.9.1989 passed by the Additional District Judge No. 3, Kota are set aside and suit of the plaintiff is decreed for the prayer made in the plaint. There shall be no order.