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Rajasthan High Court · body

2019 DIGILAW 2532 (RAJ)

Purkharam Adopted v. Jethi Devi W

2019-09-19

SANDEEP MEHTA

body2019
JUDGMENT Sandeep Mehta, J. - The instant second appeal has been preferred by the appellant Purkharam being aggrieved of the judgment-cum-decree dated 23.02.2017 passed by the learned Additional District Judge No.4, Bikaner in Civil Appeal (Decree) No.92/2016, whereby the first appellate court affirmed the judgment-cum-decree dated 09.08.2016 passed by the learned Civil Judge and Judicial Magistrate, Bikaner in Civil Suit No.327/2013. 2. I have heard and considered the submissions advanced at bar and have gone through the impugned judgments. 3. The respondent plaintiff filed a suit under Order 7 Rule 1 CPC seeking declaration of the registered adoption deed dated 07.12.2002 to be void. The respondent-plaintiff claimed in her suit that the defendant fraudulently took her to the Sub-Registrar Office saying that she was being assisted to provide her KCC loan. In this manner, by misleading her, she was made to append her thumb impression on the adoption deed. The adoption deed was challenged as being void ab initio because the defendant was 32 years of age at the time of execution of the deed. 4. The appellant-defendant Purkharam filed a written statement claiming that the husband of the plaintiff Shri Maluram had taken the defendant in adoption. All the last rites pursuant to the death of Maluram were performed by the defendant. As per the customs prevalent in Bikaner, a person could be taken in adoption irrespective of the age. 5. The trial court considered the entire material available on record and came to a conclusion that no evidence was led to show that the defendant went in customary adoption to the plaintiff's husband Maluram. Regarding the registered adoption deed, the trial court came to the conclusion that as per the document itself, the age of the defendant was 32 years as on the date of execution, whereas the age of the plaintiff was depicted to be 51 years. Thus, the defendant was above the permissible age of adoption as per Section 10 (4) of the Hindu Adoption and Maintenance Act, 1956 and further the difference of age of the plaintiff and defendant, viz. 19 years, made the adoption illegal in view of Section 11 (3) of the Act of 1956. These findings of fact arrived at by the learned trial court were affirmed by the first appellate court by the judgment and decree dated 23.02.2017. 6. The only contention of Mr. 19 years, made the adoption illegal in view of Section 11 (3) of the Act of 1956. These findings of fact arrived at by the learned trial court were affirmed by the first appellate court by the judgment and decree dated 23.02.2017. 6. The only contention of Mr. S.S. Ladrecha, learned counsel representing the appellant-defendant, to assail the impugned judgments was that the suit for declaration of the adoption deed to be void was not maintainable and that only a suit for cancellation could have been filed by the plaintiff. 7. However, this court is not in the least persuaded or satisfied with the said argument. Obviously, since the defendant was aged 32 years as on the date of execution of the adoption deed and as the age difference between the defendant and the plaintiff was less than 21 years, the adoption was void in the eyes of law and as such, the suit for declaration was definitely the appropriate remedy to question the validity of such an illegal adoption. As a consequence, I find no merit in the submissions of Mr. Ladrecha. 8. The two courts of competent jurisdiction have recorded concurrent findings of fact while decreeing the suit in favour of the plaintiff and while rejecting the appeal preferred by the appellant. No substantial question of law is made out from the material available on record so as to justify admission of this second appeal. Accordingly, the impugned judgment-cum-decree passed by the trial court as well as the first appellate court are affirmed. The appeal is dismissed as being devoid of merit. The decree be prepared, accordingly.