1. The point that is referred to the Full Bench is as follows:--
'Whether the word 'custom' or 'usage' in Section 10(iv) of the Hindu Adoptions and Maintenance Act, 1956, includes within its sweep the rules of Bombay School of Hindu Law or the interpretation of the text thereof by Courts?'
When the Reference was opened before us by Mr. Choudhari for the appellant-original defendant, he wanted to argue that there was a custom of adopting boys who have completed the age of fifteen years among the community of the party, in that village. It is because of this point, which he raised in this second appeal before the learned Single Judge that the matter was referred to the Division Bench, and by the Division Bench to this larger Bench.
2. We, however, find, on examining the pleadings by the parties, that the appellant-defendant has nowhere pleaded in the written statement that there is a custom in the area to which he belongs or in the community to which he belongs or the family from which he hails. The Hindu Adoptions and Maintenance Act, 1956, lays down certain conditions for a valid adoption amongst the Hindus. Section 4 of that Section lays down that:--
'Save as otherwise expressly provided in this Act-
(a) any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act.' XXX XXX XXX XXX
Section 5 of that Act lays down:--
'(1) No adoption shall be made after the commencement of this Act by or to a Hindu except in accordance with the provisions contained in this Chapter, and any adoption made in contravention of the said provisions shall be void.' XXX XXX XXX XXX
Section 10(iv) deals with the persons who could be adopted. It lays down in Clause (iv) thereof that no person shall be capable of being taken in adoption unless one of the conditions to be satisfied is that 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.
3. In the face of this positive statement in the Hindu Adoptions and Maintenance Act, the adoption of the appellant, even if the facts were to be held true, was void, as a person who has completed fifteen years of age could not be adopted as per these provisions. If it could be proved or if it could be shown that there is a custom to the contrary, and a boy or a girl who has completed the age of fifteen years could be adopted by way of custom of the community or the party etc., then the party could claim to be validly adopted.
4. However, we find that such a pleading is not there at all in the written statement, nor any attempt was made when the First Appeal was disposed of in the District Court for amendment of the pleadings. For the first time in the second appeal Court such a question which requires a proper pleading could not be permitted to be agitated or raised by the party.
5. This was the only point on which this Reference has been made to this larger Bench. Our answer, therefore, to the point raised is that this question does not arise in this litigation.
6. The appeal will go back to the learned Single Judge for further disposal according to law. Costs of this Reference will be costs in the appeal.
7. Order accordingly.