JUDGMENT B.H. Marlapalle, J.
1. In this Second Appeal admitted on 6-11-1996, this Court has framed the following substantial questions of law:
(i) It ought to have been held that the adoption in law was invalid and illegal as the mandatory provisions of Sections 4, 5, 10 and 11 of the Hindu Adoption Act of 1956 have not been followed and complied with.
(ii) Section 4 has an overriding effect of the Act and even the custom or usage which formed the part of the law immediately before the commencement of this Act shall cease to have any effect with respect to any matter for which provision is made in this Act. Therefore, in this regard both the Courts have committed a grave error in law in giving effect to the custom or usage prevailing prior to the coming into force of the 1956 Act. (iii) In this case the provisions of Section 10(iii) and (iv) have not at all been complied with. Admittedly, the Respondent was married at the time of adoption and he had also completed the age of 15 years at that time. (iv) Further provisions of Section 11(iv) also have not been complied with for Smt. Parvatibai, who is alleged to have taken the Respondent in adoption is less than 21 years older than the person to be adopted and this provision is admittedly not saved by any customs or usage, prevailing prior to or after coming into force of the Hindu Adoption Act.
2. In short it is the case of the appellant that the adoption of the respondent by Smt. Parvatibai purportedly taken place on 2-11-1988 was and is illegal on account of the no fulfillment of the conditions set out in Section 10(iii), Section 10(iv), Section 11(iv) and Section 11(vi) of the Hindu Adoption and Maintenance Act, 1956 (for short "the Act").
3. The undisputed facts leading to this second appeal are that the appellant is the son of Laxman Salunke and brother of Shankar Salunke, resident of Borgaon, Taluka and District Satara. Shankar was married to Parvatibai of village Anagapur on or about 1/3/1961 and he was in service at Aurangabad. Parvatibai left Shankar in a year or two after her marriage with Shankar and never returned either to Aurangabad or village Borgaon where the family i.e. the father of the appellant and Shankar had immovable property. On the contrary Smt. Parvatibai continued to stay at village Anagapur i.e. her parental / native village. Shankar died on 12/10/1984 at Aurangabad and Parvatibai was not with him at that time. The appellant's father Laxman also died on 31/5/1985. Misc. Case No.42 of 1985 filed by Smt. Parvatibai for succession certificate was decided in her favour on 22/6/1986, whereas Misc. Application No. 277 of 1989 filed by another lady by name Gandhkala was also for the same purpose i.e. for succession certificate on the demise of Shankar. The present respondent appeared in the said Misc. Application No.277 of 1989 and filed his Written Statement contending that he was taken in adoption by Smt. Parvatibai on 2/11/1988 and since Parvatibai had obtained succession certificate in Misc. Case No.42 of 1985 as the successor to the movable and immovable property of late Shankar, Misc. Application No.277 of 1989 could not be entertained. Parvatibai died in an accident on 6-7-1989 and, therefore, the respondent filed Misc. Application No.83 of 1990 for obtaining the succession certificate as L.R. of Smt. Parvatibai and thus entitled to succeed to the movable and immovable property of Shankar. The present appellant also filed Misc. Application No.166 of 1990 for heirship certificate claiming the property of late Shankar. All along the appellant was in possession of the joint family immovable property viz. residential house and agricultural land in Block No.373. The respondent allegedly obstructed the plaintiff's possession over the agricultural land on 10-10-1991 and, therefore, the appellant filed Regular Civil Suit No.589 of 1991 for a declaration that the alleged adoption of the respondent by Smt. Parvatibai was illegal and void ab-initio. He also prayed for injunction. This suit was dismissed by the learned 2nd Joint Civil Judge, Junior Division at Satara on 16-12-1994 and, therefore, the plaintiff filed Regular Civil Appeal No.23 of 1995 which also came to be dismissed by the learned 2nd Additional District Judge at Satara on 15-3-1996 and hence this Second Appeal.
4. The trial Court held that the adoption was valid and consequently the legal challenge to the adoption on account of non-compliance with the requirements of Section 10(iii) and (iv) as well as Section 11(iv) of the Act did not survive, including the issue whether ceremony of giving and taking in adoption had actually taken place or not. It further held that the plaintiff proved his possession over the suit properties as described in para 4-A, 4-B/1 and 4-B/2 of the plaint. However, the plaintiff's prayer for directions against the defendant not to withdraw the amounts mentioned in para 4-C of the plaint was turned down. It considered the evidence of Ramchandra Pujari (DW No.3) and Vyankatlal (DW No.4) as well as Maruti Atre (DW No.5). DW 3 claimed to have performed the adoption ceremony on 22-11-1988 by which the defendant was taken in adoption by Smt. Parvatibai and DW 4 stated that he was a professional photographer and had clicked photographs at Exhibit 79 of the adoption ceremony held on 22-11-1988. DW 5 was a witness to the adoption ceremony and stated that at about 8 a.m. on 22-11-1988 the ceremony of Hom-havan was observed and as a token of the defendant having been taken in adoption photographs at Exhibit 79 were taken and he identified the same. However, the said witness admitted in the cross-examination that the persons seen in the photographs were not known to him and he had not seen them before the adoption ceremony at any time. He could not give the names of these persons seen in the photograph. The lower Appellate Court agreed with the view taken by the trial Court that the factum of adoption was proved and, therefore, the adoption would be legal and valid even though the age difference between the adoptive mother and the defendant was less than 21 years and there was a contravention of the requirements of Section 11(iv) of the Act. The lower Appellate Court further held that the requirements of Section 10(iii) and (iv) of the Act were complied with in view of the law laid down by the Full Bench of this Court in the case of Anirudh Jagdeorao v. Babarao Irbaji, as well as the decision of the Apex Court in the case of Kondiba Rama Papal v. Narayan Kondia Papal,
5. The learned counsel for the appellant submitted that the Full Bench decision of this Court in the case of Anirudh (Supra) did not support the case of the defendant and he relied upon yet another decision of this Court in the case of Nemichand Shantilal Patni v. Basantabai, , in support of his contentions that there was non-compliance of the conditions set out under Section 10(iii) and (iv) of the Act inasmuch as the defendant was married and was above the age of 15 years at the time of the alleged adoption of the defendant by Parvatibai. He further submitted that in any case once the lower Appellate Court recorded a finding that there was non-compliance of the conditions set out in Section 11(iv) of the Act, it was imperative for the lower Appellate Court to declare the subject adoption as invalid even though the factum of adoption was accepted to be proved. As per him, all the conditions set out in Sections 10 and 11 of the Act are mandatory and non-compliance of any of these conditions shall result in adoption being illegal and invalid. In support of these contentions he placed reliance on the following decisions:
(i) Golak Chandra Rath v. Krutibas Rath, (DB) and (ii) Ramchandra Balu Magadum v. Rakhamabai Balu Magadum, 1992 Mah.L.J. 165.
The appellant also contends that the factum of adoption allegedly taken place on 22-11-1988 could not be proved inasmuch as none of the third party witnesses i.e. DW Nos.3 to 5 could identify the adoptive mother from the photographs at Exhibit 79 and this deficiency is fatal, in as much as the requirements of Section 11(v) of the Act were not proved by the defendant.
6. The learned counsel for the respondent on the other hand submitted as under:
(A) The factum of adoption was duly proved and, therefore, the challenge to the same adoption on the grounds of non-compliance of the requirements of Section 10(iii), 10(iv) and 11(iv) of the Act did not survive.
(B) Once the custom or usage of taking in adoption a person who is married and is above the age of years at the time of adoption, has been recognised by the judicial enunciations, it was not required to prove the same by leading evidence before the trial Court by the respondent and, therefore, the view taken by this Court (Single Bench) in the case of Nemichand Patni (Supra) could not be relied upon, more so when the said decision did not correctly appreciate the view taken by the Full Bench in the case of Anirudh (Supra).
(C) In section 11 of the Act the word "must" is required to be read as "may", once the factum of adoption was duly proved, and thus the view taken by this Court (Single Bench) in Ramchandra Magadum's case (Supra) cannot be relied upon.
(D) The provisions of Section 11 of the Act are required to be held as directory and not mandatory.
(E) The requirements set out in Sections 10 and 11 are only incidental if the conditions set out in Section 6 (i) to (iii), Sections 8 and 9 are proved, and (F) The age difference between the adopting mother and the adopted son being less than 21 years as set out in Section 11(iv) of the Act is unreasonable, discriminatory and arbitrary and hence so long as the age difference between the two is 18 years or more on the date of adoption, the adoption cannot be held to be invalid on the ground that the age difference between the two was less than 21 years on the date of adoption.
In support of these contentions it was urged by the learned counsel for the respondent that under the Indian Majority Act, a citizen attains majority on completion of 18 years of age and he/she is entitled for exercising the right of franchise. In addition the minimum age for marriage for a Hindu female is fixed at 18 years under Section 5(iii) of the Hindu Marriage Act, 1955 and the possibility of her becoming a natural mother at the age of 19 years could not be ruled out if she would be married at the age of 18 years and, therefore, the age difference between the natural mother and the son would be years. There is no justification in insisting on the age difference between the adopting mother and adopted son being 21 years or more. There is no nexus between the factum of adoption and the minimum age difference fixed at 21 or more years. The guarantee enshrined under Article 14 of the Constitution is thus taken away. It was also pointed out that with the rapid development in educational, economical and social spheres in the society during the last more than 55 years of independence, fixing of minimum age difference at 21 years is irrelevant and, therefore, the same cannot be termed as mandatory requirement within the meaning of Section 11(iv) of the Act.
7. The Full Bench of this Court in Anirudh's case (Supra) observed, inter alia, as under:
(a) By following a decision of Seven Judge Bench of the Hyderabad High Court in the case of Sheshadri v. Venubai, 37 Deccan Law Report 244, in the Marathwada area of the old State of Hyderabad, adoption of a married person was valid and that Hindus in that area were governed by the Mayukha or the Bombay School of Hindu Law and not by the Mitakshara;
(b) a widow can take a boy over 15 years of age in adoption as also a married person;
(c) the practice of taking married persons and boys over 15 years of age in adoption in the regions which are governed by the Bombay School of Hindu Law has been consistently recognised by the Bombay High Court; and
(d) the expressions "custom" and "usage" as defined in clause (a) of Section 3 of the Act include not only customs and usages in the ordinary sense which have obtained the force of law among Hindus in any local area, tribe, community, group or family, but also texts, rules and interpretations of Hindu Law which have been continuously and uniformly observed and have obtained the force of law among Hindus in any local area, tribe, community, group or family.
The Full Bench summarised its final conclusions in the following words:
"In our opinion, the correct view of the provisions of Clause (a) of Section 3 and of Section 4 and Clauses (iii) and (iv) of Section 10 of the said Act was taken by Vaidya and Shimpi, JJ., in Haribai v. Baba Anna, . We accordingly accept that view and overrule the view taken by Malvankar,J., in Second Appeal No.1444 of 1965, Bhimrao Vithu Khandagale v. Chandru Savala Khandagale; by Vimadalal and Naik, JJ., in Laxman Ganpati Khot v. Anusuyabai, and by Joshi, J., in Balkrishna Raghunath Gharat v. Sadashiv Hiru Gharat, ."
8. The learned counsel for the respondent was right in his submissions that the view taken by the Full Bench of this Court in Anirudh's case (Supra) has been approved by the Apex Court in the case of Kondiba Rama Papal (Supra) in the following words:
"...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 a child at any age. Once the custom is judicially recognised, it is not required to be independently proved in subsequent cases...."
. By following the law laid down by the Full Bench of this Court in the case of Anirudh (Supra) and by the Apex Court in the case of Kondiba (Supra) it will have to be held that in the instant case it was not necessary for the defendant to prove by evidence before the trial Court that there was a custom or usage prevailing in the Maratha community in Satara District of adopting a boy who had crossed the age of 15 years and was also married at the time of adoption. The contentions of the appellant that the adoption of the respondent as had taken place on 22-11-1988 was illegal on account of non-compliance of Section 10(iii) and Section 10(iv) of the Act have to be rejected and thus the substantial questions of law at serial no.(ii) and (iii) are hereby answered against the appellant-plaintiff.
9. Now coming to the next issue of non-compliance of the requirements of Section 11(iv) of the Act, as noted earlier, the lower Appellate Court has recorded a finding of fact that the age difference between the adopting mother and the defendant was less than 21 years on 22-11-1988 and thus there was a contravention of the requirements of Section 11(iv) of the Act. The Full Bench of this Court in Anirudh's case (Supra) was not called upon to consider the issue as to whether the requirements set out under Section 11 were mandatory or directory. The Apex Court in the case of Kondiba (Supra) also did not deal with the said issue and, therefore, the Courts below committed a gross error in holding that once the fact of adoption was proved, the non-compliance of the requirements or of any of them under Section 11 of the Act would not affect the adoption in any way and lead to a conclusion that the adoption was illegal or invalid. Section 5 of the Act states that no adoption shall be made after the commencement of the Act by or to a Hindu except in accordance with the provisions contained in Chapter II and any adoption made in contravention of the said provisions shall be void. As per sub-section (2) of the said Section an adoption which is void shall neither create any rights in the adoptive family in favour of any persons which he or she could not have acquired except by reason of the adoption, nor destroy the rights of any person in the family of his or her birth.
Section 6 states that 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. Section 11 of the Act sets out other conditions for a valid adoption and it states that these conditions must be complied with. The conditions which must be complied with are as under:
"(i) if the adoption is of a son, the adoptive father or mother by whom the adoption is made must not have a Hindu son, son's son or son's son's son (whether by legitimate blood relationship or by adoption) living at the time of adoption;
(ii) if the adoption is of a daughter, the adoptive father or mother by whom the adoption is made must not have a Hindu daughter or son's daughter (whether by legitimate blood relationship or by adoption) living at the time of adoption;
(iii) if the adoption is by a male and the person to be adopted is a female, the adoptive father is at least twenty-one years older than the person to be adopted;
(iv) if the adoption is by a female and the person to be adopted is a male, the adoptive mother is at least twenty-one years older than the person to be adopted."
. Section 16 creates certain presumptions as to the registered documents relating to adoption. It states that whenever any document registered under any law for the time being in force is produced before any Court purporting to record an adoption made and is signed by the person giving and the person taking the child in adoption, the Court shall presume that the adoption has been made in compliance with the provisions of this Act unless and until it is disproved.
10. On the first substantial question of law it is contended by the appellant that the subject adoption did not meet the mandatory requirements of Section 11(v) in as much as none of the witnesses could identify the adoptive mother and there was no evidence to hold that the respondent was actually given in adoption by his parents and was taken in adoption by Smt. Parvatibai. As per the appellant the ceremony of adoption has not been duly proved by the defendant. In the case of Lakshman Singh Kothari v. Smt. Rup Kanwar, , their Lordships observed as under, on the issue of transfer of adoptive boy by a ceremony of giving and taking and the respective forms:-
"Under the Hindu Law, whether among the regenerate caste or among Sudras, there cannot be a valid adoption unless the adoptive boy is transferred from one family to another and that can be done only by the ceremony of giving and taking. The object of the corporeal giving and receiving in adoption is to secure due publicity. To achieve this object it is essential to have a formal ceremony. No particular form is prescribed for the ceremony, but the law requires that the natural parent shall hand over the adoptive boy and the adoptive parent shall receive him. The nature of the ceremony may vary depending upon the circumstances of each case. But a ceremony there shall be, and giving and taking shall be part of it. The exigencies of the situation arising out of diverse circumstances necessitated the introduction of the doctrine of delegation; and, therefore, the parents, after exercising their volition to give and take the boy in adoption, may both or either of them delegate the physical act of handing over the boy or receiving him, as the case may be, to a third party."
. In the case of Devgonda Raygonda Patil v. Shamgonda Raygonda Patil and Anr., the adoption deed was registered and on challenge to such an adoption, this court stated as under:-
"Under Section 16 of the Hindu Adoptions and Maintenance Act the presumption is raised that adoption has been made in compliance with the provisions of the Act. It was for the plaintiff to prove that ceremony of giving and taking has not taken place. However, no evidence has been led in that respect and the court below has correctly come to the conclusion that the plaintiff has failed to prove this."
11. On the backdrop of the above enunciations, let us examine whether the plaintiff adduced any evidence before the trial court so as to rebut the presumption embodied under Section 16 of the Act, in the instant case. He examined himself as P.W.1 (Exh.91). He claimed that he had approached the Tahsildar, Satara vide his application dated 7/8/1990 and the Tahsildar in turn replied to him (Exh.87) that from the birth and death register maintained at village Bharatgaowadi there was no entry to show that a son by name Shrirang was born to Shri Narayan S/o Bhiva Kanse. He also claimed that the deed of adoption at Exh.85 was bogus/fabricated. The challenge to the adoption ceremony and the adoption deed was squarely met by the defendant by examining in all six witnesses. In addition to D.W.1 Shrirang (Defendant), five more witnesses were examined, namely, Narayan Bhima Kanse (D.W.2), Ramchandra Narayan Pujari (D.W.3), Vyankatlal Ramalal (D.W.4), Maruti Atre (D.W.5) and Suman Bartakke (D.W.6). Suman was the employee in the Tahsil Office from 1977 and she confirmed that the true copy of the adoption deed at Exh.85 was issued by her. D.W.5 Mruti was an independent witness to the adoption ceremony. D.W.4 Vyankatlal is the photographer who snapped the photograph at Exh.79 and D.W.3 Ramchandra Pujari performed the ceremony. Thus, the defendant proved the factum of adoption as well as the adoption ceremony by giving the adoptive boy by his father to the adoptive mother and her accepting the defendant in adoption. The requirements of Section 11(vi) have been duly proved in the instant case.
12. Now coming to the requirements of Section 11(iv), the findings of both the courts below are concurrent i.e. the age difference between the adoptive mother and the adoptive son was less than years. Whereas Section 11(iv) mandates that the adoptive mother is at least 21 years older than the person to be adopted. The opening sentence of Section 11 states that the conditions set out in Clauses (i) to (vi) must be complied with in every adoption. In the case of Ramchandra (Supra) this court held, "at the very inception the section speaks of the conditions set out being mandatorily required to be complied with. No other meaning can be assigned to the words 'must be complied with'. Therefore, one of the conditions for a valid adoption is the difference in ages prescribed by clause (iv). Therefore, this is not a merely directory provision but something which is mandatory and the violation whereof results in the invalidity of the adoption".
. Reliance was placed on the Division Bench decision of the Orissa High Court in the case of Golak Chandra Rath (Supra) wherein the Division Bench held that the violation of condition no.iv of Section 11 would render the adoption invalid.
13. In the instance case the School Leaving Certificate of defendant issued by the Head Master of Zilla Parishad School at Bharatgaon stated that his date of birth is 1st June 1960 (Exh.63). The defendant in his depositions before the trial court admitted that Parvatibai's name was Jagi and she was the daughter of Shri Lashman Ananta Shedge. The extract brought on record at Exh.68 showed that she was born on 2/5/1942. The Lower Appellate Court, therefore, held that the adoptive mother was not at least 21 years older than the defendant and the adoption was apparently in contravention of Section 11(iv) of the Act. Section 5 of the Act states that no adoption shall be made by or to a Hindu except in accordance with the provisions contained in Chapter II and any adoption made in contravention of the said provisions shall be void. As per Section 6, no adoption shall be valid unless ... (iv) the adoption is made in compliance with the other conditions mentioned in Chapter II. Section 11 finds its place in Chapter II of the Act. Thus, a combined reading of Sections 5,6 and 11 clearly goes to prove that the other conditions for valid adoption set out under Section 11 are mandatory and the word "must" cannot be read as "may" as contended by the learned counsel for the respondent. The arguments advanced by the learned counsel for the respondent though appear sound, may be impressive and deserving consideration on the floor of the House (Parliament) and while deciding the Second Appeal the scheme of Sections 5,6, 10 and 11 of the Act will have to be considered on the basis of the interpretations set out by various enunciations and referred to hereinabove. It is not for the Courts to give a different meaning to the word "must" and a combined reading of the scheme of Sections 5, 6, 10 and 11 goes to show that the other conditions set out under Section 11 of the Act are mandatory for a valid adoption. Whatever may be the intention of the Legislature originally, it cannot be diluted so as to read the word "must" as "may" as contended by the learned counsel for the respondent. The lower Appellate Court rightly held that the condition of Section 11(iv) of the Act was breached in the instant case inasmuch as the age difference between the adoptive mother and the defendant, at the time of adoption, was less than 21 years. This breach is fatal to the adoption. The substantial question of law framed at (iv) in para 1 above thus stands answered in favour of the plaintiff and it has to be held that the suit adoption was in breach of the condition set out in Section 11(iv) and, therefore, was invalid and void ab initio. The plaintiff would consequently succeed in this Second Appeal.
14. In the premises this Second Appeal is allowed on the ground that the mandatory requirements under Section 11(iv) have not been complied in the adoption of the defendant by Smt.Parvatibai and, therefore, the said adoption is hereby declared as invalid. Regular Civil Suit No.589 of 1991 succeeds and the same is hereby decreed by declaring that the adoption of the defendant held on 2/11/1988 is invalid and void ab initio. The orders passed by both the Courts below are hereby quashed and set aside but without any order as to costs.