C.M. Lodha, C.J.
1. The facts giving rite to this writ petition lie within a narrow compass. Proceedings utter the Rajasthan Imposition of Ceilings on Agricultural Holdings Act, 1973 (hereinafter to be referred to as the Act) were started against Ajaib Singh (who died during the pendency of the appeal before the Board of Revenue for Rajasthan) by the Authorised Officer, namely, Sub-Divisional Officer, Raisinghnagar, who by his order dated March 31, 1976, held teat Ajaib Singh was holding 64 Bighas 4 Biswas of land, and under the relevant law, he was entitled to retain 46 Bighas and 8 Biswas only. Accordingly, he held that the surplus land measuring 18 Bighas and 16 Biswas vested in the State of Rajasthan. It may be stated here that Ajaib Singh's cast was that he had adopted one Baldev Singh on April 5, 1970 and was therefore, entitled to a separate unit for his adopted son. This plea was, however, rejected by the Authorised Officer on the ground that the adoption was not preyed to be valid, as Baldev Singh, the adopted sen, was more than 18 years of age and was also married at the time of adoption. Aggrieved by the decision of the Authorised Officer, Ajaib Singh filed appeal before the Collector, Sri Ganganagar, who, by his judgment dated July 8, 1976 (Ex. 2), dismissed the appeal. Thereupon, Ajaib Singh filed a second appeal before the Board of Revenue for Rajasthan and the Board, by its under dated April 14, 1978 (Ex. 4), dismissed the appeal Consequently. Smt. Phin Kaur widow of late Ajaib Singh, who had died meanwhile, and the adopted son Baldev Singh, filed this writ petition under Article 226 of the Constitution, challenging the validity and correctness of the impugned orders passed by the Authorised Officer (Sub Divisional Officer, Raisinghnagar), the Collector, Sri Ganganagar and the Board of Revenue for Rajasthan. The State has filed a return to the writ petition and has contested the writ petition.
2. The only point that falls for determination fn this writ petition is whether the Board was justified in coming to the conclusion that adoption of Baldev Singh was not proved to be legal and valid? It may be staled here, that in the return filed by the State as well as in the course of arguments, even the factum of adoption has been challenged on behalf of the State. We have, therefore, examined the question whether the factum of adoption has been proved? In this connection, it may be stated that the Authorised Officer has referred to the statements of Gurubachan Singh, Darbara Singh and Ajaib Singh, produced by Ajaib Singh to prove the adoption. He has, no doubt, observed that the original deed of adoption, contained in the 'Bahi' of Ajaib Singh, his not been put on the record. He has also observed that the adoption deed is not registered. But in the ultimate analysis, he has come to the conclusion that the adoption is not legal and valid as the adopted son, namely, Baldev Singh, was more thin 18 years old and was also married at the time of adoption and, consequently, his adoption was not in accordance with the provisions of the Hindu Adoption and Maintenance Act, 1956. The learned Collector, Sri Ganganagar, while disposing of the appeal from the order of the Authorised Officer, has observed that the adoption deed is not registered and that the age of the adopted son was more than 15 years, i.e. about 21 years at the time of adoption. In this view of the matter, he agreed with the finding of the learned Authorised Officer. When the matter came before the Board, the Board also discussed only the question regarding the age of the adopted boy at the time of adoption and has observed that the adoption had taken place in violation of the provisions of Section 10 of the Hindu Adoption and Maintenance Act in as much as the person taken in adoption was married and was above 15 years of age. The Board further held that the adoptive father had not proved any custom or usage, by which a married boy of any age could be adopted among the parties. It also observed that there are several contradictions in the evidence adduced by the appellant and that the adoption deed was not registered and, therefore, no presumption can be drawn in favour of the petitioner under Section 16 of the Hindu Adoption and Maintenance Act and further that there was no evidence to show that the father of the adopted boy had given his consent at the time of adoption. Having made these observations, the Board again addressed itself to the question of the age of the boy and also to the fact that he was married at the time of adoption and held that the adoption was not proved to be legal and valid.
3. Thus, it appeals to us that neither the Authorised Officer (i.e. Sub-Divisional Officer, Raisinghnagar), nor the Collector, Sri Ganganagar, nor the Board of Revenue for Rajasthan came to a firm finding that the factum of adoption is established though on reading the judgment of the Board as a whole, we are inclined to think that the Board was of the view that the custom of adopting a married boy above the age of 15 years, had not been established and hence adoption cannot be recognized. In these circumstances we are of opinion that the case should go back to the Authorised Officer, i.e. the original authority, to discuss the evidence in accordance with law and give a finding on the point whether the factum of adoption is proved.
4. As regards the custom, Mr. Hasti Mal Parekh has invited our attention to a Bench decision of this Court in Sarjeet Singh v. Kripal Singh 1955 RLW 124, wherein it was observed as below:.There are undoubtedly many resemblances between custom of adoption in Bikaner and the Punjab as contradistinguished from the adoption under the Hindu Law. The custom in both cases dispenses with ceremonies and the adoption of a married man is valid, and similarly an adoption of an orphan is recognised and there are no restrictions as regards the age or degree of relationship of the person to be adopted.
On the basis of the aforesaid authority, Mr. Hasti Mal has argued that no further proof is required to prove the custom or usage. However, we do not wish to express any opinion on the question of custom and usage as we are remanding the case to the Authorised Officer, i.e. Sub-Divisional Officer, Raisinghnagar to give a fresh finding on the question of factum of adoption. He is also directed to decide the allied question whether Baldev Singh's adoption to Ajaib Singh is proved to be valid according to the custom or usage as applicable to the parties. While deciding this point, we have no doubt that the Authorised Officer will also keep in view the authority cited before us by Mr. Hasti Mal. It will also be in the discretion of the Authorised Officer to give a further opportunity to the parties to lead evidence, if they so desire.
5. The result is that we allow this writ petition in part, set aside the order by the Board dated April 14, 1978 (Ex. 4), as well as the order by the Collector, Sri Ganganagar, dated July 8, 1976 (Ex. 2) and the order by the Authorised Officer dated March 31, 1976, and seed the case back to the Authorised Officer (Sub Divisional Officer, Raisinghnagar) to decide the matter afresh on the lines indicated above. In the circumstances of the case, we leave the parties to bear their own costs.