JUDGMENT : The respondents/plaintiffs have filed the present appeal under Section 100 of Civil Procedure Code (for brevity hereinafter called as “CPC”) challenging the judgment and decree passed in RA No.56/2019 dated 14.11.2019 by II Addl. Senior Civil Judge and JMFC., Dharwad, which has confirmed the judgment and decree passed in OS No.261/2010 dated 22.07.2019 passed by II Addl. Civil Judge and JMFCII, Dharwad. There is a concurrent finding of fact. Hence, the respondents have preferred the present appeal. 2. Brief facts of the case: The respondents/plaintiffs have filed the suit for declaration to declare that the alleged adoption deed dated 05.05.2009 executed by the deceased Madiwalayya Meti in favour of appellant/defendant is null and void. The respondents are daughters of the deceased Madiwalayya Meti. The said deceased Madiwalayya Meti and his five brothers have an ancestral joint family landed properties. The marriage of both respondents/plaintiffs was performed by their deceased father Madiwalayya Meti and he died on 12.11.2009. Thereafter, the respondents have filed an application before the Tahasildar, Dharwad for entering their names in Revenue records being legal heirs of the deceased. But, their names have not been entered. On enquiry, the respondents learnt that the appellant/defendant has also filed application to enter his name in the Revenue records on the base of the adoption deed. Therefore, on the allegation that, the appellant/defendant to knock off the property, has created false adoption deed. Therefore, the respondents were constrained to file suit to declare that the adoption deed is null and void and also prays to declare that the respondents are legal heirs of the deceased Madiwalayya Meti. 3. The appellant/defendant had put appearance in the suit and filed written statement and contended that Madiwalayya Meti is uncle of the appellant/defendant and his wife left him long back and there were no issues to him. Therefore, the appellant/defendant was only care taker of the deceased Madiwalayya Meti. Hence, out of love and affection and service rendered by the defendant, the deceased Madiwalayya Meti had approached the genetic parents of the defendant for taking adoption of the defendant and after taking consent of the genetic parents of the defendant, the deceased had taken the defendant in adoption by performing religious ceremony and also executed registered Adoption deed in favour of the defendant in the presence of witnesses. Further stated that deceased Madiwalayya Meti died due to his old age, when he was under care and custody of the defendant. Therefore, contended that defendant had become absolute owner of the property of Madiwalayya Meti being adoptive son of Madiwalayya Meti. 4. Before the trial Court, the plaintiff No.1 herself is examined as PW1 and examined three other witnesses as PW.2 to PW.4, also produced 10 documents, which are marked as Ex.P1 to P10. The defendant was examined as DW.1 and got examined two other witnesses as DW.2 and DW.3 and also produced documents, which are marked as Ex.D1 and D2. 5. The trial Court has decreed the suit of the plaintiff by declaring the respondents as legal heirs of deceased Madiwalayya Meti and also declared that the registered Adoption deed dated 05.05.2009 executed by Madiwalayya Meti is illegal, null and void. The trial Court assigned the reason that as per Ex.P8 and P9 School certificates and Ex.P6Heirship certificate, it is proved that the respondents/plaintiffs are the legal heirs of the deceased Madiwalayya Meti. The Trial Court as per Section 50 of the Evidence Act held that the relationship of respondents/plaintiffs and deceased Madiwalayya Meti is proved as daughters and father as the other 3 witnesses PW.2 to PW4 have stated in their evidence and opinion is expressed by conduct as relationship is existed and these witnesses have special means of knowledge on the subject and hence held that the respondents are daughters of the deceased Madiwalayya Meti. 6. Then, the trial court has assigned reason declaring the adoption deed is null and void for the reason that the defendant was aged 17 years as on the date of adoption and as per Clause (iv) of Section 10 of the Hindu Adoption and Maintenance Act, 1956 (for brevity hereinafter called as ‘the Act’) which is not valid in the absence of any custom or usage to adopt the person who is above the age of 15 years, hence, the said person cannot be taken on adoption. Therefore, the condition enumerated in Clause (iv) of Section 10 of the Act is violated as the defendant was above the age of 15 years. Therefore, the condition enumerated in Clause (iv) of Section 10 of the Act is violated as the defendant was above the age of 15 years. Further, the trial Court assigned the reason that for taking defendant on adoption, the consent of genetic father and mother was not obtained and therefore, as per Clause (vi) of Section 11 of the Act, whatever adoption is taken without consent of parents is invalid. With these reasons the trial Court has decreed the suit and declared that the adoption deed is null and void. 7. Being aggrieved by the decreeing of the suit, the defendant has preferred Regular Appeal before the First Appellate Court. The First Appellate Court has dismissed the appeal and has confirmed the judgment and decree passed by the trial Court. The First Appellate Court had concurred with the finding of fact arrived at by the trial Court with reasons that the respondents are daughters of the deceased Madiwalayya Meti and there is a contravention of Clause (iv) of Section 10 and Clause (vi) of Section 11 of the Act. Therefore, the declaration of trial Court as adoption deed is null and void is correct. Hence, dismissed the appeal by confirming the judgment and decree passed by the trial Court. 8. The defendant has preferred the second appeal and the learned counsel appearing for the appellant/defendant submitted that in Bombay Karnataka area there is usage and custom that even a child above the age of 15 years can be taken in adoption. Therefore, the observations made by both the Courts below are not correct. Further, submitted that the Hon’ble Apex Court in the case of KONDIBA RAMA PAPAL ALIAS SHRIKE VS. NARAYAN KONDIBA PAPAL, reported in AIR 1991 SC 1180 and also this Court in the case of RAMABADDU LAMANI VS. REVANASIDDAYYA CHANNAVEERAYYA MUDDABIHALMATH (DEAD) THROUGH LRs and OTHERS reported in ILR 2010 KTK 5694 have held that in Bombay Karnataka area there is a custom and usage that even a child above the age of 15 years can be taken in adoption. Therefore, submitted that both the courts below have committed error in not following these judgments and have committed error. Hence, submitted that there substantial questions of law are involved. Hence, prays to admit the appeal and hear the appeal on merit. Therefore, submitted that both the courts below have committed error in not following these judgments and have committed error. Hence, submitted that there substantial questions of law are involved. Hence, prays to admit the appeal and hear the appeal on merit. Therefore, prays to allow the appeal by setting aside the judgments and decree passed by both the courts below. 9. On the other hand, the learned counsel for respondents/plaintiffs submitted that both the Courts below have correctly applied the law on the issue involved and also have correctly appreciated the evidence on record and also concurrent of facts recorded by both the Courts below are perfectly justifiable and correct. Therefore, submitted that there is no merit in the appeal and also there are no substantial questions of law are involved. Hence, prays to dismiss the appeal. 10. Further, he submitted that there is a contravention of Clause (iv) of Section 10 and Clause (vi) of Section 11 of the Act, which is correctly applied under the facts and circumstances. Therefore, both the Courts below have formed opinion rightly and thus, the appeal is liable to be dismissed. 11. Having heard the submissions made by the learned counsels appearing for the parties at admission stage and after obtaining consent from both sides, taken up the appeal for consideration on its merits at admission stage itself. Following is the substantial question of law arises and heard arguments on this substantial question of law and taken up the matter for disposal. (1) Whether, under the facts and circumstances involved in the case, in absence of any custom or usage whether a child above the age of 15 years can be taken on adoption as per Clause (iv) of Section 10 of the Act and without consent of genetic mother a child can be given in adoption as per Clause (vi) of Section 11 of the Act ? 12. The learned counsel appearing for the appellant relied on the judgment of Hon’ble Supreme Court in the case of KONDIBA RAMA PAPAL ALIAS SHRIKE (supra) and in the case of RAMABADDU LAMANI(supra). 13. In KONDIBA RAMA PAPAL ALIAS SHRIKE case the Hon’ble Apex Court was pleased to observe as follows: The question then arises, is the adoption legal and valid in law in view of the provisions of the Act? 13. In KONDIBA RAMA PAPAL ALIAS SHRIKE case the Hon’ble Apex Court was pleased to observe as follows: The question then arises, is the adoption legal and valid in law in view of the provisions of the Act? Section 10 of the Act inter alia provides that no person shall be capable of being taken in adoption unless the four conditions therein laid down are fulfilled. We are concerned with the fourth condition and it is as under: '(iv) he or she had 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.' At the time when the plaintiff was adopted he was about 22 years old, but even though there is a difference of opinion between various schools as to the age when a boy may be adopted, so far as the Bombay State is concerned the position is well settled in view of more than one judicial decision. As pointed out in Mulla's Hindu Law, 14th Edition at page 550, in the Bombay State a person may be adopted at any age though he may be older than the adopter and though he may be married and have children. The adoption is not invalid although it took place after the thread ceremony of the boy was performed. Thus the custom is judicially recognised in the Bombay State as regards adoption of child at any age. Once the custom is judicially recognised, it is not required to be independently proved in subsequent cases. The plaintiff and the defendant No. belonged to the area which was part of the old Bombay State and accordingly such a custom prevailed amongst them as regards adoption of a child at any age. Even independently of this position, in the old Bombay State evidence was led of two instances of adoption of persons belonging to the same caste as the plaintiff where a child was adopted at the age above 15 years after the Act came into force. Thus in my opinion, in view of the settled position in law as judicially recognised, if the factum of the adoption is established its validity cannot be challenged on the ground that the adopted child had completed the age of 15 years at the time of his adoption. 14. Thus in my opinion, in view of the settled position in law as judicially recognised, if the factum of the adoption is established its validity cannot be challenged on the ground that the adopted child had completed the age of 15 years at the time of his adoption. 14. T his Court in the case of RAMABADDU LAMANI (supra) by following KONDIBA RAMA PAPAL ALIAS SHRIKE (supra) was pleased to observe at para 11 and 12 as follows : 11. The Supreme Court of India in Kondiba Rama Papal's case, while interpreting Section 10 of the Act held that a custom judicially recognised need not be proved in subsequent cases. The learned Single Judge of this Court in Siddegowda v. Smt. Mallamma held that the necessity of pleading and proof of custom in every case does not arise when the Privy Council has by law declared that there is a custom amongst the sudras to adopt a boy who is aged above 15 years. 12. Keeping in view the law laid down in the two decisions referred to above; it is necessary to examine the fact situation in the present case. It is not in dispute that on the date of adoption deed-Ex. D. 7 Defendant 1 was aged about 30 years. Therefore, Clause (iv) of Section 10 of the Act is a bar for adopting a person more than 15 years. The only exception to the bar under Section 10(iv) of the Act is a custom or usage applicable to the parties which permit persons who have completed age of 15 years being taken in adoption. In the instant case there is no pleadings and there is no proof with regard to the custom or usage applicable to the parties to take in adoption of person above the age of 15 years. The admitted fact situation is that both the parties are from Managoli Village, Bagewadi Taluk in Bijapur District. It is not in dispute between the parties that the entire Bijapur District was a part of old Bombay State. The Supreme Court in Kondiba Rama Papal's case held that "in long line of decisions before the Act came into force and also subsequent to the Act came into force the judicial pronouncement recognised in the old Bombay State custom and usage of adopting a person above the age of 15 years". The Supreme Court in Kondiba Rama Papal's case held that "in long line of decisions before the Act came into force and also subsequent to the Act came into force the judicial pronouncement recognised in the old Bombay State custom and usage of adopting a person above the age of 15 years". In view of this judicial recognition of the custom and usage in old Bombay State it is not necessary in subsequent case in plead and prove the very same custom and usage of adopting a child who is more than 15 years age arising from the very same area. The lower Appellate Court without noticing this aspect of the matter committed an error in holding that the adoption deed-Ex. D7 is invalid in view of the bar under Section 10(iv) of the Act. Therefore, the finding of the lower Appellate Court is liable to be set aside. The question of law framed above is answered affirmatively. Sri Ramesh B. Anneppanavar, learned Counsel for the Plaintiffs relying on two decisions of this Court in AIR 1972 Kant. 73 and Gangavva v. Ningavva and Ors. contends that in the absence of pleadings and proof of custom the adoption deed-Ex. D7 is to be held as invalid in the eye of law. There is no dispute with regard to the legal preposition that pleadings and proof is necessary in support of the custom or usage as specified in Clause (iv) of Section 10 of the Act. If judicial pronouncement has recognised a particular custom or usage in a community or in a province, it need not be necessarily pleaded and proved in subsequent disputes. This is the law laid down by the Supreme Court in the case of Kondiba Rama Papal's case and this Court in Siddegowda's case. It is not in dispute that the parties in the instant litigation are from a place which was a part of old Bombay State. The judicial pronouncement held that in the province of old Bombay State there is a custom and usage to adopt a child who is more than 15 years of age. 15. Clause (iv) of Section 10 of the Act, stipulates that even if, the child is above the age of 15 years and if, custom or usage permits to take ad option of a child who is above the age of 15 years can be taken in adoption. 15. Clause (iv) of Section 10 of the Act, stipulates that even if, the child is above the age of 15 years and if, custom or usage permits to take ad option of a child who is above the age of 15 years can be taken in adoption. Therefore, as per this provision of law, the general rule is that the child who is more than 15 years cannot be taken in adoption. The exception is that upon proving the custom or usage a child above the age of 15 years can also be taken in adoption. Admittedly, in the present case, the appellant was aged 17 years as on the date of the adoption deed dated 05.05.2019. Therefore, it is burden on the appellant to prove that there was custom or usage in his family or in his community or in his locality or inregion that there was a custom or usage to take adoption of the child above the age of 15 years. But, in the present case, the appellant has not produced any evidence to show that there was a custom or usage in his family or in his locality or in his region to take a child even if the child is above the age of 15 years. The only submission made by the counsel for the appellant is that in Bombay State Region, there is a custom to take adoption of a child even if, he is above the age of 15 years. To this, learned counsel for the appellant placed reliance on the judgment of the Hon’ble Apex Court and judgment of this Court stated supra. But, judgment in the case of KONDIBA RAMA PAPAL ALIAS SHRIKE (supra), it is the principle of law laid down that unless there is a custom or usage applicable to the parties, which permits persons who have completed the age of 15 years being taken on adoption and held that in Bombay State a person may be adopted at any age and the custom is judicially recognized in Bombay State as regards adoption of child at any age. Following this, this Court in the case of RAMABADDU LAMANI (supra) had held that in Bhagewadi taluk, in Bijapur District there was a custom to take adoption of a child even though he is more than 15 years old. Following this, this Court in the case of RAMABADDU LAMANI (supra) had held that in Bhagewadi taluk, in Bijapur District there was a custom to take adoption of a child even though he is more than 15 years old. In both the above stated cases, there are no facts and evidences revealed that there was a proof of custom or usage regarding taking adoption of a child more than 15 years old. It is generally observed that in this region there is a custom to take adoption of a child above the age of fifteen years. 16. The Hon’ble Apex Court in the case of LAXMIBAI (DEAD) THROUGH LRS AND ANOTHER VS. BHAGWANTBUVA(DEAD) THROUGH LRS AND OTHERS reported in (2013)4 SCC 97 , wherein more or less similar facts and circumstances involved was pleased to observe that whether a boy can be taken in adoption only within the family and consequently whether the adoption was legal and correct. In this judgment, the Hon’ble Apex Court was pleased to discuss regarding custom and usage and regarding proof of custom or usage by way of an established practice. It is incumbent up on the par ties who are asserting that there is custom or us age, it is burden on them to prove the custom or usage. 17. Section 3( a) of the Act defines as follows: “3. Definitions.—In this Act, unless the context otherwise requires,— (a) the expressions “custom” and “usage” signify any rule which, having been continuously and uniformly observed for a long time, has obtained the force of law among Hindus in any local area, tribe, community, group or family: Provided that the rule is certain and not unreasonable or opposed to public policy: and Provided further that, in the case of a rule applicable only to a family, it has not been discontinued by the family;” 18. The Hon’ble Apex Court in the case of LAXMIBAI(DEAD) THROUGH LRS AND ANOTHER(Supra) was pleased to observe at paragraph Nos. 12, 13, 14 , 15 , 16 and 17 as below: “12.Custom is an established practice at variance with the general law. A custom varying general law may be a general, local, tribal or family custom. A general custom includes a custom common to any considerable class of persons. A custom which is applicable to a locality, tribe, sect or a family is called a special custom. A custom varying general law may be a general, local, tribal or family custom. A general custom includes a custom common to any considerable class of persons. A custom which is applicable to a locality, tribe, sect or a family is called a special custom. Custom is a rule, which in a particular family, a particular class, community, or in a particular district, has owing to prolonged use, obtained the force of law. Custom has the effect of modifying general personal law, but it does not override statutory law, unless the custom is expressly saved by it. Such custom must be ancient, uniform, certain, continuous and compulsory. No custom is valid if it is illegal, immoral, unreasonable or opposed to public policy. He who relies upon custom varying general law, must plead and prove it. Custom must be established by clear and unambiguous evidence. 13. In Dr. Surajmani Stella Kujur v. Durga Charan Hansdah, AIR 2001 SC 938 , this Court held that custom, being in derogation of a general rule, is required to be construed strictly. A party relying upon a custom, is obliged to establish it by way of clear and unambiguous evidence. (Vide: Salekh Chand vs. Satya Gupta, (2008) 13 SCC 119 ). 14. A custom must be proved to be ancient, certain and reasonable. The evidence adduced on behalf of the party concerned must prove the alleged custom and the proof must not be unsatisfactory and conflicting. A custom cannot be extended by analogy or logical process and it also cannot be established by a priori method. Nothing that the Courts can take judicial notice of needs to be proved. When a custom has been judicially recognised by the Court, it passes into the law of the land and proof of it becomes unnecessary under Section 57(1) of the Evidence Act, 1872. Material customs must be proved properly and satisfactorily, until the time that such custom has, by way of frequent proof in the Court become so notorious, that the Courts take judicial notice of it. (See also: Effuah Amissah v. Effuah Krabah, AIR 1936 P.C. 147 ; T. Saraswati Ammal v. Jagadambal & Anr., AIR 1953 SC 201 ; Ujagar Singh v. Mst. Jeo, AIR 1959 SC 1041 ; and Siromani v. Hemkumar & Ors., AIR 1968 SC 1299 ). 15. In Ramalakshmi Ammal v. Sivanatha Perumal Sethuraya, (MIA pp. (See also: Effuah Amissah v. Effuah Krabah, AIR 1936 P.C. 147 ; T. Saraswati Ammal v. Jagadambal & Anr., AIR 1953 SC 201 ; Ujagar Singh v. Mst. Jeo, AIR 1959 SC 1041 ; and Siromani v. Hemkumar & Ors., AIR 1968 SC 1299 ). 15. In Ramalakshmi Ammal v. Sivanatha Perumal Sethuraya, (MIA pp. 58586) it was held: "It is essential that special usage, which modifies the ordinary law of succession is ancient and invariable; and it is further essential that such special usage is established to be so, by way of clear and unambiguous evidence. It is only by means of such evidence, that courts can be assured of their existence, and it is also essential that they possess the conditions of antiquity and certainty on the basis of which alone, their legal title to recognition depends." 16. In Salekh Chand (supra), this Court held as under: ”23. 'Where the proof of a custom rests upon a limited number of instances of a comparatively recent date, the court may hold the custom proved so as to bind the parties to the suit and those claiming through and under them……... 26…….All that is necessary to prove is that the usage has been acted upon in practice for such a long period and with such invariability as to show that it has, by common consent, been submitted to as the established governing rule of a particular locality. 27. A custom may be proved by general evidence as to its existence by members of the tribe or family who would naturally be cognizant of its existence, and its exercise without controversy………….….' 17. In Bhimashya & Ors. v. Smt. Janabi @ Janawwa, (2006) 13 SCC 627, this Court held: ”25. 'A custom is a particular rule which has existed either actually or presumptively from time immemorial, and has obtained the force of law in a particular locality, although contrary to or not consistent with the general common law of the realm…………it must be certain in respect of its nature generally as well as in respect of the locality where it is alleged to obtain and the persons whom it is alleged to affect. 28. 28. Custom is authoritative, it stands in the place of law, and regulates the conduct of men in the most important concerns of life; fashion is arbitrary and capricious, it decides in matters of trifling import; manners are rational, they are the expressions of moral feelings. Customs have more force in a simple state of society. 29. Both practice and custom are general or particular but the former is absolute, the latter relative; a practice may be adopted by a number of persons without reference to each other; but a custom is always followed either by limitation or prescription; the practice of gaming has always been followed by the vicious part of society, but it is to be hoped for the honour of man that it will never become a custom.'” 19. But, in the present case, there are no evidences placed by the appellant to prove that there was a custom or usage prevailing in his family or community to prove that even the boy above the age of 15 years can be taken in adoption. The trial Court had discussed the evidence of defendant that there is no evidence placed before the Court to prove that there is a custom or usage to adopt the boy more than 15 years of age. Admittedly, the parties in the present case are belonging to Lingayath community and there is no proof by the appellant/defendant that in the said community, there is custom or usage to take a boy in adoption above the age of 15 years. Therefore, this is rightly observed by the both the Courts below that unless there is a proof of custom or usage to take a boy in adoption who is more than 15 years old, the boy cannot be taken on adoption. Therefore, while answering substantial question of law above stated, the adoption taken as alleged by the appellant is not a valid adoption by applying the law as enshrined in clause (iv) of Section 10 of the Act. 20. Further, considering whether the said alleged adoption is to be tested under the provision of clause (vi) of Section 11 of the Act, the adoption as pleaded by the appellant is not found to be valid and legal, for the reason that the genetic mother’s consent is also required and is necessary for giving a child in adoption. 21. 20. Further, considering whether the said alleged adoption is to be tested under the provision of clause (vi) of Section 11 of the Act, the adoption as pleaded by the appellant is not found to be valid and legal, for the reason that the genetic mother’s consent is also required and is necessary for giving a child in adoption. 21. Clause (vi) of Section 11 of the Act stipulates as follows: “11. Other conditions for a valid adoption. In every adoption, the following conditions must be complied with: (i) xxxx (ii) xxxx (iii) xxxx (iv) xxxx (v) xxxx (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 child whose parentage is not known, from the place or family where it has been brought up] to the family of its adoption.” Provided that the performance of data homam shall not be essential to the validity of adoption. 22. Therefore, one of the condition for a valid adoption is there is a giving and taking in adoption by the parents or guardian of the child. Parents means, it includes both mother and father if they are alive. Admittedly, in the present case the mother of the appellant was alive. Ex.P.4 and Ex.D1 are the notarized copy of registered adoption deed and original registered adoption deed respectively. The trial Court as well as First Appellate Court have discussed these documentary evidence i.e Ex.P.4 and Ex.D.1. The deceased Madiwallaya had wife and not mentioning the other children then create a doubt on the adoption. In Ex.P.4 and Ex.D.1 it is not mentioned that consent of mother was taken. This document of adoption deed only shows that the deceased Madiwallaya had presented the deed for registration purpose. But, there is no endorsement that father and mother of the appellant had consented the appellant to be given in adoption. Therefore, there is violation of Clause (vi) of Section 11 of the Act. Therefore, The adoption is found to be not valid adoption. In the absence of consent of mother, no child can be given on adoption. In the present case, consent of mother is absent in the adoption deed. Therefore, there is violation of Clause (vi) of Section 11 of the Act. Therefore, The adoption is found to be not valid adoption. In the absence of consent of mother, no child can be given on adoption. In the present case, consent of mother is absent in the adoption deed. Therefore, the substantial question of law is answered on this count also that the adoption is invalid because of absence of consent of mother. 23. Therefore, having considered the appeal on its merits and finding of fact reached by the both the Courts below, there is no perversity in the finding of fact arrived at by the Courts below. Therefore, the appeal is liable to be dismissed. Hence, I proceed to pass the following: ORDER RSA No.101028/2019 is dismissed. Judgment and decree passed in RA No.56/2019 dated 14.11.2019 by II Addl. Senior Civil Judge and JMFC., Dharwad and Judgment and decree passed in OS No.261/2010 dated 22.07.2019 passed by II Addl. Civil Judge and JMFC-II, Dharwad are hereby confirmed. No Order as to costs. Draw decree accordingly.