JUDGMENT : N.K. SUDHINDRARAO, J. 1. The appeal is directed against the judgment and decree passed by the learned Civil Judge (Senior Division), Chikodi, in RA No. 76/1999 wherein the appeal came to be allowed with costs and the suit of the plaintiff was decreed as prayed for in the following terms: "The appeal is allowed with costs. The suit of the plaintiff is decreed as prayed on the following terms: The plaintiff is declared as the adopted son of the defendants 1 and 2. The plaintiff is entitled to the 1/3rd share in the suit properties. The partition shall be effected as contemplated under section 54 of CPC. Till the partition is effected by metes and bounds as per law, the plaintiff is entitled to the joint possession and enjoyment of the suit properties along with defendant 5 and the permanent injunction is granted against the defendants in this regard restraining them from ousting the plaintiff from the joint possession of the suit land." 2. Earlier to it, the learned Principal Civil Judge (Junior Division) and JMFC, Chikodi (hereinafter referred as 'trial Court') in O.S. No. 267/988 has decreed the suit in part and the operative portion is as under: "Suit of the plaintiff is partly decreed. It is declared that plaintiff is adopted son of deft No. 1 and 2. The relief of permanent injunction restraining deft Nos. 1 and 2 from causing obstruction of joint possession and enjoyment of plff in suit property is rejected. The relief of partition and possession of suit property is also rejected." 3. This appeal under Section 100 of the Code of Civil Procedure, 1908, being a Regular Second Appeal, was admitted on the following substantial questions of law: "Whether Courts below were justified in holding that the custom in Bombay areas provided for adoption of a person who is aged above 15 years and in particular 20 years and consequently granting the reliefs south for?" 4. In order to avoid confusion and overlapping the parties are addressed in accordance with their status and ranking before the trial Court. 5. In order to avoid confusion and overlapping the parties are addressed in accordance with their status and ranking before the trial Court. 5. The claim of the plaintiff before the trial Court is that the suit property is agricultural land bearing R.S. No. 1043/1 measuring 6 acres 24 guntas out of which 4 acres 15 guntas situate at Wadgol hamlet of Sadalage village and also Well and Farm House situate in R.S. No. 1043/1 which is more fully explained in Schedule "A". The plaintiff claims that he is the adopted son of defendant Nos. 1 and 2. In other words, defendant No. 1 is the adoptive father of the plaintiff and defendant No. 2 is the adoptive mother of the plaintiff, defendant Nos. 3 and 4 are the natural parents of the plaintiff. Defendant Nos. 1 and 2 adopted the plaintiff on 26.02.1981 as they were issueless and old. Defendant Nos. 3 and 4, who are the natural guardian consented and gave the plaintiff in adoption. It is stated in the adoption deed that the plaintiff was aged 20 years on the date of adoption. There was a custom and usage since time immemorial in the community of the plaintiff and the defendants for adopting a person above 15 years. The parties to the proceedings belong to shepherd community and major part of them are illiterates. In the circumstances, the adoption dated 26.02.1981 is legal and valid. The plaintiff was looking after and managing the suit properties. That being so, defendant Nos. 1 and 2 with the instigation of busy bodies of ill-wishers of the plaintiff made them to neglect the plaintiff and refused to recognize him as adopted son. Because of which, they started neglecting the plaintiff and the initial love and affection towards the plaintiff got disappeared. Defendant Nos. 1 and 2 refused to give a share to the plaintiff. It is further contended that they are attempting to sell the suit property. It is stated that the plaintiff is in actual possession and enjoyment of the property from the day one of the adoption. The plaintiff came to know that Dareppa Patil has not come in actual possession of the suit land the plaintiff is not a party to the sale deed. It is stated that the plaintiff is in actual possession and enjoyment of the property from the day one of the adoption. The plaintiff came to know that Dareppa Patil has not come in actual possession of the suit land the plaintiff is not a party to the sale deed. It is further contended and stated that the plaintiff is in joint possession and enjoyment of the property as a co-parcener having vested right in the schedule property as a person in joint possession. 6. The defendant denied the plaint averments and contended that the plaintiff cannot keep the defendants at bay from the schedule property. The person to whom the property as sold by defendant No. 1 was got impleaded as defendant No. 5. Thus, the defendant disputed adoption and adoptive right of joint possession of the plaintiff. In the suit, the plaintiff has arrayed defendant No. 1, adoptive father, defendant No. 2-adoptive mother and defendant Nos. 3 and 4, the natural parents of the plaintiff and presently got impleaded defendant No. 5 who purchased the schedule property from defendant No. 1. 7. The learned trial Judge framed the following issues: "1. Whether the plaintiff proves that there is a custom and usage in their community even to adopt a boy aged more than 15 years? 2. Whether the plaintiff proves that the defendant Nos. 1 and 2 have adopted him as per he custom and usage? 3. Whether the plaintiff proves that the defendant Nos. 1 and 2 have also voluntarily executed the adoption deed dated 26.2.1981? 4. Whether the defendant No. 1 and 2 prove that the adoption deed dated 26.2.1981 is a fabricated document and it came into existence under the facts and circumstances stated in their written statement? 5. Whether the plaintiff proves that he was in joint possession and enjoyment of the suit property along with the defendant Nos. 1 and 2 on the date of the suit? 6. Whether the plaintiff proves the alleged interference of the defendant Nos. 1 and for his joint passion and enjoyment of the suit property? 7. Whether the defendant Nos. 1 and 2 prove that the suit is not properly valued and the court fee paid on the plaint is insufficient? 8. Whether the suit is in time? 9. Whether the plaintiff proves that he is entitled for the declaration as sought for in the suit? 10. 7. Whether the defendant Nos. 1 and 2 prove that the suit is not properly valued and the court fee paid on the plaint is insufficient? 8. Whether the suit is in time? 9. Whether the plaintiff proves that he is entitled for the declaration as sought for in the suit? 10. Whether the plaintiff proves that he is entitled for the permanent injunction against the defendant Nos. 1 and 2 as sought for in the suit? 11. Whether the defendant Nos. 1 and 2 prove that they are entitled for the compensatory cost of Rs. 500/- each from the plaintiff as claimed in their written statement? Addl. Issue No. 1: Whether plaintiff prove that the sale deed dated 26.09.1991 in favour of defendant No. 5 bogus and a created document? Add. Issue Nos. 2: Whether plaintiff is entitle for share in the suit property? 12. What order and decree? and answered accordingly. Following are the oral and documentary evidence available before the learned trial Judge. Witness examined for the plff. Pw-1: Balakrishna Krishna Patil, PW-2: Srishila Babubagai, PW-3: Maruthi Sidram Gawade PW-4: Babu Kollappa Bagai Witness examined for the deft. DW1: Akkatai Krishna Patil, Documents produced for the plff. Ex. P1: R of R Ex. P2: Khata extract Ex. P3: certified copy of adoption deed Ex. P4: adoption deed original Ex. P5: Original adoption deed Ex. P6: photo Documents produced for the plff. Nil. 8. Learned counsel Sri. Sangram S. Kulkarni for the appellant/defendant No. 5 submits that defendant No. 5 purchased the schedule property and insofar as intervention of plaintiff with a claim of adoption is not tenable, as it is only the claim of the plaintiff that his both adoptive son and he has a right in the joint family property. It was also submitted that the adoption though registered cannot attract legal force. Learned Counsel Mr. T.M. Nadaf for plaintiffs submits that the adoption is absolutely has a value since both legal and religious formalities were followed. The moment the plaintiff entered the family of defendants 1 and 2 on the date of adoption that is 20.02.1981 he was vested with the right of a coparcener. In this case, defendant No. 5 has managed to get the schedule properties sold in his favour. The moment the plaintiff entered the family of defendants 1 and 2 on the date of adoption that is 20.02.1981 he was vested with the right of a coparcener. In this case, defendant No. 5 has managed to get the schedule properties sold in his favour. It was also submitted that the minds of defendants 1 and 2 were spoiled by the people, who are inimical to plaintiffs and because of those persons, the plaintiffs were neglected by defendants 1 and 2. In the meanwhile, there has been a condition regarding the extent of land that was sold. Plaintiffs in their suit say that in Survey No. 1043/1 an extent of 4 acres 15 guntas out of 6 acres 24 guntas was sold. Thus the parties calculated their shares at 1/3rd and 2/3rd. The following points assume significance in adjudicating substantial questions of law in this case. • The claim of adoption by the plaintiff, • The validity and sanctity of the sale deed said to have been executed by defendant No. 1 in favour of defendant No. 5, • The intention of the parties and the nature of right of the plaintiff. 9. Insofar as right from the date of un-codified Hindu Law, the restriction regarding giving of son in adoption, the principles which are required to be followed are "Na-Ek-Putrodayat" means only son cannot be given in adoption, "Na-Jeshta-Putrodayat" means the eldest son cannot be given in adoption. However after the enforcement of the Hindu Adoptions and Maintenance Act, 1956 it provides the conditions, validity and consequential effect of adoption. It is needless to observe that the adopting family in case of adoption, adoptive child, the moment of adoption, becomes the child of adoptive family and loses all connection with the natural family and however any right already vested in the child do not get divested. The general formality for adoption is giving and taking of child that is handing over of the child by natural parents to the adoptive parents. Previously "Dattaka Homa" prayer of sacred fire for adoption was a mandatory factor. However, essential conditions of adoption now are contemplated under Section 6 of the Act. 6. Requisites of a valid adoption. The general formality for adoption is giving and taking of child that is handing over of the child by natural parents to the adoptive parents. Previously "Dattaka Homa" prayer of sacred fire for adoption was a mandatory factor. However, essential conditions of adoption now are contemplated under Section 6 of the Act. 6. Requisites of a valid adoption. --No adoption shall be valid unless-- (i) the person adopting has the capacity, and also the right, to take in adoption; (ii) the person giving in adoption has the capacity to do so; (iii) the person adopted is capable of being taken in adoption; and (iv) the adoption is made in compliance with the other conditions mentioned in this Chapter. Insofar as Section 7 of the Act is concerned, any Hindu male, with sound mind can give any adoption of child but the minor cannot give a child in an adoption and also the consent of the spouse is must and important. The persons eligible for giving adoption are the parents and other recognised persons under Section 9 of the Act. Insofar as persons who may be adopted is mentioned in Section 10 of the Act, which reads as under: 10. Persons who may be adopted.-- No person shall be capable of being taken in adoption unless the following conditions are fulfilled, namely:-- (i) he or she is a Hindu; (ii) he or she has not already been adopted; (iii) he or she has not been married, unless there is a custom or usage applicable to the parties which permits persons who are married being taken in adoption; (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. It explains that the child must be Hindu child, aged below 15 years, not previously adopted to anybody, can be given in adoption unless there is a custom applicable which completes the process. In this connection, the very Act defines the person to be adopted must be a child. The object of legislation behind the conditions is to prevent the misuse of adoption. If the adoption is by a father and adopted child is a girl, at least the father must be aged more than 21 years and well-versed. In this connection, the very Act defines the person to be adopted must be a child. The object of legislation behind the conditions is to prevent the misuse of adoption. If the adoption is by a father and adopted child is a girl, at least the father must be aged more than 21 years and well-versed. The age of defendant No. 1 in the plaint is shown as 62 years. Now the validity of the adoption is the focal point of observation regarding the legal effect on the entire suit. In case the adoption is valid and he is treated as a child given in adoption to the adoptive parents, the plaintiff has all the rights including joint possession. 10. The learned counsel Sri. Sangram S Kulkarni, rely on section 12 of the Act, which reads as under: 12 Effects of adoption. --An adopted child shall be deemed to be the child of his or her adoptive father or mother for all purposes with effect from the date of the adoption and from such date all the ties of the child in the family of his or her birth shall be deemed to be severed and replaced by those created by the adoption in the adoptive family: Provided that-- (a) the child cannot marry any person whom he or she could not have married if he or she had continued in the family of his or her birth; (b) any property which vested in the adopted child before the adoption shall continue to vest in such person subject to the obligations, if any, attaching to the ownership of such property, including the obligation to maintain relatives in the family of his or her birth; (c) the adopted child shall not divest any person of any estate which vested in him or her before the adoption. 11. The learned counsel submits that the adoptive child shall not be divested of any estate which vested in him/her before the adoption. In this connection this court can only exercise its say that, vested right is absolute right and exclusive one and insofar as section 13 is concerned, it is the right of adoptive parents to dispose of their property without hindrance in the form of adoption. It all depends on the nature of property as to self-acquired property, separate property, joint family property, encumbered property etc. 12. It all depends on the nature of property as to self-acquired property, separate property, joint family property, encumbered property etc. 12. Now we are discussing the validity of adoption. Insofar as the custom is concerned, it is recognised both under Hindu Law and Mohammedan Law. Insofar as Hindu Law is concerned, a Sanskrit saying is popular as "Achara Paramo Dharmah", which means the custom is first justice. It is said that even in Mohammedans Law when the Chief Judge of Veman asked his holiness Prophet Paigambar, when there is no law regarding a particular aspect what is to be followed, and the answer was custom. Now the question is how the custom comes into force. First people practice what was convenient to them. It is not that one usage is allowed just because it is convenient to person using, which should not be harm to another, because exercising a right of usage of any aspect cannot come in the way of others right. As we have a right to swing our walking stick only till exactly where the nose of another man begins. Now the question is usage; when it is followed continuously without break, it generates in two customs. Under jurisprudence, custom has been given utmost importance and it is the usage. When it generates into a custom and when that custom is advantageous one, not immoral or illegal or opposed to public policy, it would gain the recognition of law and once the recognition of law is gained by custom, it becomes a statute. Now we are not for a while saying that it has become a statute. The question is whether custom prevailed among shepherd community people to claim exemption from the condition laid down, the condition regarding 15 years according to plaintiff is relaxable to their community. It is necessary to mention that shepherd community is also Hindu religion, within the definition Hindu under various statutes. It is for the plaintiff to establish that there was custom. It is necessary extract the portion of discussions on custom from Salmond on Jurisprudence, which reads as under.- CUSTOM The early importance of customary law. Although custom is an important source of law in early times (a), its importance continuously diminishes as the legal system grows. It is for the plaintiff to establish that there was custom. It is necessary extract the portion of discussions on custom from Salmond on Jurisprudence, which reads as under.- CUSTOM The early importance of customary law. Although custom is an important source of law in early times (a), its importance continuously diminishes as the legal system grows. As an instrument of the development of English law in particular, it has now almost ceased to operate, partly because it has to a large extent been superseded by legislation and precedent, and partly because of the stringent limitations imposed by law upon its law-creating efficacy. In earlier times it was otherwise. It was long the received theory of English law that whatever was not the product of legislation had its source in custom. Law was either the written statute law, or the unwritten, common or customary law. Judicial precedent was not conceived as being itself a legal source of law at all, for it was held to operate only as evidence of those customs from which the common law proceeded. Lex et consuetude Anglix was the familiar title of our legal system. The common law of the realm and the common custom of the realm were synonymous expressions. It may be confidently assumed, indeed, that this doctrine did not at any time express the substantial truth of the matter, and that from the earliest period of English legal history the common law was in fact to a very large extent created and imposed by the decisions of the royal courts of justice, rather than received by these courts from the established customs of the community. However this may be, the identification of the common law with customary law remained the accepted doctrine long after it had ceased to retain any semblance of truth. For some centuries past the true sources of the bulk of our law have been statute and precedent, not statute and custom, and the common law is essentially judge-made law, not customary law (b). Yet we find Hale in the seventeenth century, and Blackstone in the eighteenth, laying down the older doctrine as still valid (bb). In the words of Blackstone, "The municipal law of England. . . may with sufficient propriety be divided into two kinds; the lex non scripta, the unwritten or common law; and the lex scripta, the written or stature law. In the words of Blackstone, "The municipal law of England. . . may with sufficient propriety be divided into two kinds; the lex non scripta, the unwritten or common law; and the lex scripta, the written or stature law. The lex non scripta, or unwritten law, includes not only general customs, or the common law properly so called, but also the particular customs of certain parts of the kingdom; and likewise those particular laws that are by custom observed only in certain courts and jurisdictions". Such language is an echo of the past, not an accurate account of the facts of the present day. Nevertheless, even now custom has not wholly lost its law-creating efficacy. It is still to be accounted one of the legal sources of the law of England, along with legislation and precedent, but far below them in importance (c). Insofar as the kinds of custom to have the legal force they are two which are operative as per rule of law and binding and the second one is custom which operate only indirectly though through agreement it is accepted. It is not only under adoption, even prior to Hindu Marriage Act there were so many conditions and circumstances that was unfavorable to female, which were reformed. A usage or a conventional custom is one established practice which is legally binding and not because any legal authority independently possessed by it, but it has been expressly or impliedly incorporated in a contract between the parties concerned. 13. The legal requirements of custom are first usage before it can serve as a source of law or create legal obligation. It must be ancient in law, immemorial, continuous. For the sake of what is to be done on day after tomorrow one cannot generate a particular way of practice and claimed to be a practice among their religion. It may be times immemorial. The conventional customary are seen which imposes a requirement of immemorial or antiquity. A legal system in the stricto sensu must be endured when there is no memory. Now the question is having so much custom. Here admittedly parties are Kuruba community, who are Hindus. The adoptive child, the adoptive parents and the natural parents are Hindus, but it is not like maintenance Act or Guardianship Act. Irrespective of the age of the child, custody has to be considered giving paramount importance to the child. Now the question is having so much custom. Here admittedly parties are Kuruba community, who are Hindus. The adoptive child, the adoptive parents and the natural parents are Hindus, but it is not like maintenance Act or Guardianship Act. Irrespective of the age of the child, custody has to be considered giving paramount importance to the child. Here it should have been practiced. Two adoption deeds Ex. P.5 dated 30.05.1969 and Ex. P.4 dated 24.04.1996 are produced. Two instances are presented to show that a child aged beyond 15 years could be adopted. It is not that, one should go in search of adoptions and get the instructions. There must be a familiar practice without interruption and without causing any harm. If once the custom is recognised either by the statute or by the constitutional court from the moment of recognition, it becomes law. In these circumstances, I am of the sincere but firm finding that the plaintiff has miserably failed to establish that there was a practice or custom conventional or otherwise to gain legal force for adopting a child aged beyond 15 years among shepherd community (Kuruba). 14. Insofar as registration of the deeds by themselves, cannot add validity to it. At the end of the day, registration is only a formality. There are various cases of genuine adoption, which are not registered but the circumstances and the attendant circumstance tell that it was a valid adoption. In the whole circumstances, the other developments of the plaintiff also to be curiously watched. Defendants 1 and 2 are adoptive parents and 3 and 4 are natural parents and he does not explain why the natural parents were also brought on record. Though it is absent in pleading but in the evidence of P.W.4, it is stated that the defendants 3 and 4 have other two children apart from plaintiff. Hence, I hold that the adoption claimed by the plaintiff is a nullity. He was not a coparcener of the family and he never got any absolute or vested right in the schedule property of the family of defendants 1 and 2. In the process, sale deed made by defendant No. 1 in favour of defendant No. 5 is enforceable and is not bound by the claim of the plaintiff. He was not a coparcener of the family and he never got any absolute or vested right in the schedule property of the family of defendants 1 and 2. In the process, sale deed made by defendant No. 1 in favour of defendant No. 5 is enforceable and is not bound by the claim of the plaintiff. The learned Trial Court and the Appellate Court as well have erred seriously in not understanding and applying the principles of law relating to adoption and to apply the legal meaning of the term custom. Thus, the judgments rendered by the Trial Court as well as the Appellate Court are hit by violation of provisions of Hindu Adoption and Maintenance Act, 1956 and accordingly, are liable to be set aside. Hence the following: ORDER The appeal is allowed. The judgment and decree passed by the First Appellate Court as well as the Trial Court are set aside and the suit is dismissed.