Judgement Appeal from an interlocutory judgment of the High Court (Dec. 2, 1896) setting aside a finding in first appeal of the District Court of Sholapur Bijapur and from a final decree of the High Court (Aug. 11, 1897) dismissing the appellants suit. The appellant, the widow, and as such sole heiress of Amingavda Desai, who died while a minor in 1876, sued the respondent, her adopted son, under the guardianship of his natural father Ramappa, praying for a declaration that he was not properly and legally adopted; for a further declaration that the ceremony of adoption of the defendant did not take place; otherwise, that the said adoption was ineffectual and invalid, inasmuch as misrepresentations were made to the plaintiff, and she was deceived and was prevented from getting proper information and proper advice. The Subordinate Judge of Bagalkote found that the adoption of the respondent was real and valid so Law Rep. 31 Ind. App. 154 ( 1903- 1904) Shivabasava Kom Amingavda V. Sangappa Bin Amingavda 59 far as certain property called the Desgat Watan was concerned, but that the appellant was entitled to a declaration that as regards property not being Desgat Watan the adoption would take effect only after the appellants death. The District Court found on the facts that there was no real adoption of the respondent by the appellant, and that the appellant was entitled to the declaration which she claimed, and passed a decree in accordance with such finding. The High Court in second appeal passed an interlocutory judgment on December 2, 1896, by which it set aside the judgment of the District Court on the question whether the adoption of the respondent was real and restored the judgment of the Subordinate Judge on that point, and remitted the case to have the second issue raised in the District Court (namely, whether the adoption, if real, was binding on the appellant) determined by the District Court, and passed no decree. The District Court thereupon found that the adoption of the respondent, if real, was binding on the appellant. Accordingly the High Court reversed the District Courts decree, and dismissed the suit with costs. The District Court thereupon found that the adoption of the respondent, if real, was binding on the appellant. Accordingly the High Court reversed the District Courts decree, and dismissed the suit with costs. Cave, K.C., and A. F. C. Luxmoore, for the appellant, contended that the High Court had no jurisdiction under s. 584 of the Civil Procedure Code to interfere with the finding of the District Court on first appeal, more especially as there was evidence to support it. Reference was made to Anangamanjari Chowdhrani v. Tripura Soondari Chowdhrani (L. R. 14 Ind. Ap. 101,110.) ; Mussummat Durga Choudhrain v. Jawahir Singh Choudhri. (( 1890) L. R. 17 Ind. Ap. 122, 127.) The evidence shewed that no real and binding adoption took place, or at least that the adoption, if it purported to have been made, was conditional, and consequently invalid. Mere execution of deeds is insufficient to effect an adoption. There must be an actual giving and taking of the child; ceremonies also were necessary, while those deposed to in this case were manifestly insufficient see Shosinath Ghose v. Krishna Soondari Dasi (( 1880) L. R. 7 Ind. Ap. 250.); Collector of Madura v. Ramalinga Sathupathy (( 1868) 12 Moores Ind. Ap. Ca. 397, 440.); Sri Raghunadha Deo v. Sri Brozokishoro Patta Deo (( 1876) L. R. 3 Ind. Ap. 154.) ; Vellanki Venkata Krishna Row v. Venkata Rama Lakshmi (( 1876) L. R. 4 Ind. Ap. 1.); Ramchandra Bhagavan v. Mulji Nanabhai (( 1896) Ind. L. R. 22 Bomb. 558.); Mahableshvar Fondba v. Durgabai. (( 1896) Ind. L. R. 22 Bomb. 199.) The purdanashin in this case did not have that degree of advice and protection which was necessary to give validity to her deeds, nor was there any proof of her intention to adopt, or of her understanding the nature and effect of the ceremony performed see Bayabai v. Balaurf Venkatesh Ramakant. (( 1866) 7 Bomb. H. C. R. Ap. 1, 21.) There are English cases in which even marriage has been declared to be void when there was a want of understanding as to the effect of the ceremony Scott v. Sebright (( 1886) 12 P. D. 21.); Ford v. Stier. ([ 1896] P. 1.) As to a conditional adoption being void and the effect of agreements contemporaneous with adoption, see Chitko Raghunath Rajadiksh v. Janaki (( 1874) 11 Bomb. ([ 1896] P. 1.) As to a conditional adoption being void and the effect of agreements contemporaneous with adoption, see Chitko Raghunath Rajadiksh v. Janaki (( 1874) 11 Bomb. H. C. 199.) and Bhaiya Rabidat Singh v. Indar Kunwar. (( 1888) L. R. 16 Ind. Ap. 53.) Cohen, K.C., and C. W. Arathoon, for the respondent, contended that the High Court was right in holding that, having regard to the terms of s. 584 of the Civil Procedure Code, an appeal lay from the finding of the District Judge if it was shewn that it resulted from some substantial error or defect in procedure. The High Court addressed itself to that question, and not to the weight or credibility of evidence. They considered it was contended rightly that the District Judge came to a finding of his own on a case not made by the parties, not warranted by the pleadings, and to which evidence had not Law Rep. 31 Ind. App. 154 ( 1903- 1904) Shivabasava Kom Amingavda V. Sangappa Bin Amingavda 60 been directed. It was admitted before him that the adoption took place, that there had been no fraud, and that the immediate cause was an apprehension on the widows part that otherwise the Desgat Watan might lapse to the Government, in accordance with the view entertained of certain resolutions of the Bombay Government. Reference was made to Maynes Hindu Law, 6th ed. par. 196. The point as to the purdanashin not being properly protected was not taken in the Courts below, and did not arise on the pleadings or evidence or issues. From the evidence as it stood it appeared that the appellant well understood what she was doing. The question of motive was irrelevant. Cave, K.C., replied. The judgment of their Lordships was delivered by SIR ARTHUR WILSON. This is an appeal from two decisions, one interlocutory and the other final, of the High Court of Bombay. The suit disposed of by those judgments was originally brought in the Court of the Subordinate Judge of Bagalkote, and was one of a very peculiar character, being brought by a widow against her adopted son, adopted by herself, for the purpose of negativing, or getting rid of the effects of, her adoption. The suit disposed of by those judgments was originally brought in the Court of the Subordinate Judge of Bagalkote, and was one of a very peculiar character, being brought by a widow against her adopted son, adopted by herself, for the purpose of negativing, or getting rid of the effects of, her adoption. The story told in the plaint was that no adoption of any kind had in fact taken place, but that the plaintiff was induced by the fraud and duress of the defendants natural father, and of her own wat-mukhtyar, to pretend to Government that she had adopted the defendant, and to execute what she called " a hollow deed of adoption," which acknowledged the adoption to have been made nine days before the date of the deed. She prayed for a declaration that the defendant is not her properly and legally adopted son, for a declaration that the ceremony of adoption did not take place, and, if the defendant should contend that the ceremony of adoption did take place, for a declaration that it is ineffectual and invalid by reason of fraud, The written statement affirmed the adoption, and traversed the allegations of fraud. The issues raised, so far as now material, were (2.) Does she (plaintiff) prove that the deed of adoption and other documents in support of it were obtained from her by fraud or other unlawful means ? (3.) Does she prove that the alleged adoption is false ? and (4.) Is the adoption invalid on any ground ? The Subordinate Judge held that the ceremony of adoption had taken place with all necessary formalities. He arrived at certain other findings now superseded, and in the result he decreed that the adoption was proved, that at present the adoption was limited in its effect to the Watan property, and that as to all other property it would take effect after plaintiffs death. From that decree both parties appealed to the Court of the Assistant Judge of Bijapur. The learned judge in that Court stated the issues, as formulated before him, thus (1.) Was there a real adoption ? (2.) If so, is it binding on the plaintiff? (3.) To what relief, if any, is plaintiff entitled ? He stated that the fact of the adoption was no longer disputed, and the charges of fraud were abandoned. The learned judge in that Court stated the issues, as formulated before him, thus (1.) Was there a real adoption ? (2.) If so, is it binding on the plaintiff? (3.) To what relief, if any, is plaintiff entitled ? He stated that the fact of the adoption was no longer disputed, and the charges of fraud were abandoned. He found the first of the above three issues in the negative. On the second he did not formally find. On the third he found that the plaintiff was entitled to a declaration that the adoption was not real and is invalid. He decided the case in favour of the plaintiff, resting his conclusion upon reasoning which is not altogether easy to follow, holding that, though the adoption was made in fact, and the charges of fraud were unfounded, the adoption ceremony was a mere farce, and of no binding effect. His decree cancelled the adoption. The defendant took the case on second appeal to the High Court of Bombay. Such second appeal can lie only (ss. 584 and 585 of the Civil Procedure Code) on the ground of (a) the decision being contrary Law Rep. 31 Ind. App. 154 ( 1903- 1904) Shivabasava Kom Amingavda V. Sangappa Bin Amingavda 61 to some specified law or usage having the force of law; (b) the decision having failed to determine some material issue of law or usage having the force of law; (c) a substantial error or defect in the procedure as prescribed by this Code or any other law, which may possibly have produced error or defect in the decision of the case upon the merits. The learned judges of the High Court held that under this section, if the Lower Appellate Court had made a new case for the parties not warranted by the pleadings and evidence, they had jurisdiction to interfere and to reverse its decree upon that ground, and they considered that this error or defect in procedure had occurred in the present case. They held further that they had jurisdiction to reverse the decision of the Lower Appellate Court if its decision were without evidence to support its finding, and they considered that this was so. They held further that they had jurisdiction to reverse the decision of the Lower Appellate Court if its decision were without evidence to support its finding, and they considered that this was so. In accordance with these views the High Court set aside the finding of the Assistant Judge that the adoption was not real, and restored that of the First Court, and remanded the case to the Lower Appellate Court to find upon the issue whether the adoption was binding upon the plaintiff. On this remand the Lower Appellate Court found the issue in the affirmative, and when that finding was returned to the High Court that Court by its final decree dismissed the suit. Against these decisions of the High Court the present appeal has been brought. The substantial contention urged before their Lordships has been that the High Court had no jurisdiction under s. 584 to interfere with the finding of the Lower Appellate Court. Their Lordships agree with the learned judges of the High Court. They think the Lower Appellate Court did dispose of the suit upon a case not raised by the parties, and to which the evidence had not been directed, and that this was a substantial error or defect of procedure within the meaning of s. 584. They also agree with the High Court in thinking that there was no evidence before the Lower Appellate Court upon which that Court could properly arrive at the conclusion of fact at which it did arrive. In Anangamanjari Chowdhrani v. Tripura Soondari Chowdhrani (L. R. 14 Ind. Ap. 101, 110.) the rule was laid down in the following terms " It was, in the opinion of their Lordships, within their jurisdiction " (that is to say, within the jurisdiction of the judges of second appeal) " to dismiss the case, if they were satisfied that there was, as an English lawyer would express it, no evidence to go to the jury, because that would not raise a question of fact such as arises upon the issue itself, but a question of law for the consideration of the judge." The same rule was laid down in Mussummat Durga Choudhrain v. Jawahir Singh Choudhri (L. R. 17 Ind. Ap. 122, 127.), where the rule is treated from the negative point of view. Ap. 122, 127.), where the rule is treated from the negative point of view. " Where there is no error or defect in the procedure, the finding of the First Appellate Court upon a question of fact is final, if that; Court had before it evidence proper for its consideration in support of the finding." Some minor objections to the final decision of the High Court were raised in argument. As to these, it is sufficient to say that they are all points covered by the findings of the Courts in India, or which might and ought to have been raised in those Courts. Their Lordships will humbly advise His Majesty that this appeal should be dismissed. The appellant will pay the costs.