Judgement Appeal from a judgment and decree of the Chief Court of the Punjab (April 6, 1908) affirming a judgment and decree of the Divisional Judge, Ferozepore (October 14, 1904), which affirmed a judgment and decree of the District Judge, Ferozepore (March 23, 1903). The appeal arose rut of a suit brought by the respondent against his uncle Jiwan Mal, now represented by the appellant, another nephew. The suit was for a declaratory decree that the plaintiff (respondent) was the adopted son of Jiwan Mal. The parties were Hindus and Agarwal Banias of Zira, and the plaintiff was an orphan and a married man at the time of the alleged adoption. The District Judge made a decree as claimed. On appeal the Court of the Divisional Judge at Ferozepore on July 10, 1903, remanded the case under s. 566 of the Code of Civil Procedure, 1882, for an inquiry into the question whether the parties were governed by Hindu law or by custom, and if by custom, whether the adoption as alleged to have taken place was valid under the custom prevailing among the Agarwal Banias of Zira. The District Judge appointed the Tahsildar Law Rep. 40 Ind. App. 156 ( 1912- 1913) C himan Lal V. Hari C hand 67 of Zira to make a local inquiry and to record such evidence as the parties adduced. The Tahsildar heard and recorded evidence and added a report in which he recorded his opinion against the alleged custom and adoption. Upon the case again coming before the Divisional Judge, he, on October 14, 1904, gave judgment for the plaintiff, stating that " from the evidence produced by the parties it is proved beyond a shadow of doubt that as far as adoption is concerned the parties do not follow Hindu law but are governed by custom," and further that " the plaintiff was adopted by the defendant Jiwan Mal as his son according to the custom prevailing among the Agarwal Banias of Zira." The appeal was accordingly dismissed. Upon the application of the defendant the Chief Court admitted the case for revision under the Punjab Courts Act (XVIII. of 1884), s. 70 (a) and (h), and after argument gave judgment on May 14, 1907, setting aside the judgment of the Divisional Judge and dismissing the suit. Upon the application of the defendant the Chief Court admitted the case for revision under the Punjab Courts Act (XVIII. of 1884), s. 70 (a) and (h), and after argument gave judgment on May 14, 1907, setting aside the judgment of the Divisional Judge and dismissing the suit. The respondent having obtained an order for review of this decision, under s. 623 of the Code of Civil Procedure, 1882, the case was re-argued before the same Bench as had heard the original appeal. By their judgment of April 6, 1908, the Chief Court set aside their former decision and upheld the decision of the Divisional Judge in favour of the plaintiff. Sir R. Finlay, K.C., and Ross, K.C., for the appellant. The evidence clearly established that with regard to adoption the Agarwal Banias are governed by Hindu law, save in so far as it is varied by custom. There was no finding of fact, and no evidence, that there is a custom overriding the principle of the Hindu law of adoption in so far as it renders impossible the adoption of an orphan and of a married man. The evidence did not shew an unequivocal intention to adopt the respondent. On the contrary it was proved that Jiwan Mal treated both his nephews, the appellant and the respondent, alike. If one was adopted according to the alleged custom, so was the other, and it is not suggested that a double adoption could be made. The appeal is competent even if "no substantial question of law is involved" within s. 596 of the Code of Civil Procedure, because the Chief Court certified under s. 595 (c), to which sub-section s. 596 does not apply. In any case, however, the question of the capacity of the person to be adopted as distinguished from the fact of adoption is a question of law. For these reasons the decisions in Karuppanan Servai v. Srinivasan Chetti (( 1901) L. R. 29 Ind. Ap. 38.) and Mirza Sajjad Husain v. Nawab Wazir Ali Khan (( 1912) L. R. 39 Ind. Ap. 156.) do not apply. De Gruyther, K.C., and OGorman, for the respondent, were not called upon. The judgment of their Lordships was delivered by SIR JOHN EDGE. Ap. 38.) and Mirza Sajjad Husain v. Nawab Wazir Ali Khan (( 1912) L. R. 39 Ind. Ap. 156.) do not apply. De Gruyther, K.C., and OGorman, for the respondent, were not called upon. The judgment of their Lordships was delivered by SIR JOHN EDGE. The suit in which this appeal has arisen was brought on January 19, 1901, in the Court of the District Judge of Ferozepore by Hari Chand, who is the respondent here, against Jiwan Mal, now dead, who is represented by Chiman Lal, the appellant. In this suit Hari Chand sought a declaration that he was the adopted son of Jiwan Mal, the then defendant. In his written statement Jiwan Mal alleged that he had never adopted Hari Chand. Hari Chand and Jiwan Mal were Hindus, and Agarwal Banias, of Zira, in the Punjab. Hari Chand was one of the four sons of Ghannu Mal, who was a brother of Jiwan Mal. Chiman Lal, the appellant here, was a son of Maya Mal, who was another brother of Jiwan Mal. At the time of the alleged adoption Hari Chand was an orphan and was married. No issue was framed by the District Judge as to whether the parties were governed by Hindu law or by custom, or as to the validity of the adoption if it, in fact, were made. The District Judge held that in the Punjab " Non-agricultural Hindus do not, in matters of adoption, follow Hindu law, and there seems no reason to doubt that a declaration of Law Rep. 40 Ind. App. 156 ( 1912- 1913) C himan Lal V. Hari C hand 68 adoption, together with treatment in accordance with the avowed intention, would be sufficient to establish the validity of an adoption, even though the position of the adopted son were inconsistent with the strict requirements of Hindu law." The District Judge found that Jiwan Mal had, in fact, adopted Hari Chand, and on March 23, 1903, gave the plaintiff a decree. From the decree of the District Judge Jiwan Mal appealed to the Court of the Divisional Judge of Ferozepore. The Divisional Judge, on July 10, 1903, remanded the suit to the Court of the District Judge to give the parties the opportunity of proving or disproving the validity of the adoption. From the decree of the District Judge Jiwan Mal appealed to the Court of the Divisional Judge of Ferozepore. The Divisional Judge, on July 10, 1903, remanded the suit to the Court of the District Judge to give the parties the opportunity of proving or disproving the validity of the adoption. On the return to the order of remand the Divisional Judge found, as a fact, that the parties were governed in cases of adoption by customary law, and that in the caste to which the parties belonged " a mere declaration to the effect that a boy has been adopted and his subsequent treatment as a son are sufficient for all intents and purposes to make the adoption a valid one," and further found on the evidence that Hari Chand had been adopted by Jiwan Mal as his son according to the custom prevailing among the Agarwal Banias of Zira. The Divisional Judge by his decree of October 14, 1904, dismissed the appeal. From the decree of October 14, 1904, of the Divisional Judge Jiwan Mal appealed to the Chief Court of the Punjab. The learned judges of the Chief Court on appeal carefully reviewed the evidence in the case, and, holding that Jiwan Mal had unequivocally designated Hari Chand as his heir and had treated him as his adopted son, found that the factum of adoption was proved. On the question of the validity of the adoption the learned judges found that the Agarwal Banias of Zira did not follow Hindu law in matters of adoption, and observed that " the really important thing is the unequivocal intention and treatment, and we find both proved here.” The Chief Court by its decree dismissed the appeal. From the decree of the Chief Court of the Punjab dismissing the appeal to that Court this appeal has been brought. In this appeal it has been contended on behalf of the appellant, so far as is material, that Jiwan Mal did not in fact adopt Hari Chand as his son, and that the alleged adoption was invalid according to Hindu law. In this appeal it has been contended on behalf of the appellant, so far as is material, that Jiwan Mal did not in fact adopt Hari Chand as his son, and that the alleged adoption was invalid according to Hindu law. Their Lordships consider that the Chief Court and the Divisional Judge have concurrently found that among the Agarwal Banias of Zira the general rules of Hindu law as to adoptions do not apply, and that by the custom applicable to the Agarwal Banias of Zira an unequivocal declaration by the adopting father that a boy has been adopted and the subsequent treatment of that boy as the adopted son is sufficient to constitute a valid adoption; and that in fact Jiwan Mal did unequivocally adopt Hari Chand as his son and treated him as his adopted son. Of the fact of the adoption and treatment there was ample evidence upon which the judges of the Chief Court and the Divisional Judge could find as they did. The evidence upon which it was found that the Agarwal Banias of Zira do not in matters of adoption follow the general rules of Hindu law, and that by the custom applicable to them an unequivocal declaration of adoption followed by subsequent treatment of the person as an adopted son is sufficient to constitute a valid adoption, appears to their Lordships to have been somewhat limited, but their Lordships consider that as between the parties to this suit and to this appeal, and those claiming through or under them, that evidence was sufficient to entitle the Chief Court and the Divisional Judge to find that the adoption was valid. Their Lordships, however, consider that the present case, owing to the limited nature of the evidence as to custom among the Agarwal Banias of Zira, would not be a satisfactory precedent if in any future instance among other parties fuller evidence regarding the alleged custom of the Agarwal Banias of Zira should be forthcoming. The contention that Chiman Lal had also been adopted by Jiwan Mal is not established by the evidence before this Board. Their Lordships will humbly advise His Majesty that this appeal should be dismissed and that the decree of the Chief Court of the Punjab should be affirmed. Chiman Lal, the appellant, must pay the costs of this appeal. Law Rep. 40 Ind. App. Their Lordships will humbly advise His Majesty that this appeal should be dismissed and that the decree of the Chief Court of the Punjab should be affirmed. Chiman Lal, the appellant, must pay the costs of this appeal. Law Rep. 40 Ind. App. 156 ( 1912- 1913) C himan Lal V. Hari C hand