Judgement Appeal (No. 133 of 1923) from a decree of the Court of the Judicial Commissioner (March 12, 1920) reversing a decree of the Court of the Additional District Judge of Amraoti. The suit was brought by the respondent, a minor suing by her guardian, to recover from the appellant the movable and immovable property of her father, Ramdhan, a Hindu of the Agarwalla caste, who died on June 14, 1914. The appellant, who had taken possession of R.s property, alleged that he was the adopted son of Joharmal, a deceased brother of Ramdhan, and that the property in suit had been the joint property of the two brothers. The facts appear from the judgment of the Judicial Committee. The Additional District Judge held that the alleged adoption was established. He found that the appellant had been given in adoption by his mother in 1903; he also found that the brothers were joint in estate. He accordingly dismissed the suit. On appeal to the Court of the Judicial Commissioner the decree was reversed. The learned judges held that there had been no giving or taking of the appellant in adoption, and that no estoppel arose. The Court decreed that the defendant should deliver to the plaintiff possession of the property claimed by her in the schedules to her plaint, and pay mesne profits, and directed an inquiry as regards the mesne profits. 1924. Nov. 18, 20. De Gruyther K.C. and S. Hyam for the appellant. A complete and valid adoption was estab lished. Further, Ramdhan was estopped by his acts and statements from denying the adoption; the respondent is estopped in equity if not under s. 115 of the Indian Evidence Act Kannammal v. Virasami (( 1892) I. L. R. 15 M. 486.); Parvatibayamma v. Ramakrishna Rau (( 1894) I. L. R. 18 M. 145.); Vaithilingam Mudali v. Murugaian. (( 1904) I. L. R. 37 M. 529.) [Reference was made also to Sarat Chunder Dey v. Gopal Chunder Laha (( 1892) L. R. 19 I. A. 203.) and to Cooper v. Phibbs. (( 1867) L. R. 2 H. L. 149, 170.)] In any case a decree referring to the whole of the property in the schedules should not have been made. Questions as to whether part of the property formed part of the estate have not been tried. (( 1867) L. R. 2 H. L. 149, 170.)] In any case a decree referring to the whole of the property in the schedules should not have been made. Questions as to whether part of the property formed part of the estate have not been tried. Dunne K.C. and Dube for the respondents were called upon only as to the form of the decree; they referred, however, on the question of estoppel to Gopee Lall v. Chundraolee Buhoojee. (L. R. I. A. Supp. 131.) 1925. Feb. 2. The judgment of their Lordships was delivered by MR. AMEER ALI This appeal arises out of a suit brought by the respondent, Soni Bai, in the Court of the Additional District Judge of Amraoti, in East Berar, for a declaration that she was entitled by inheritance to the estate of her father, Ramdhan Marwari, who died at Amraoti on June 24, 1914. She was a minor at the time and brought the suit by her guardian, her father-in-law, Narain Das, as next friend. The facts of the litigation may be stated shortly for the purposes of this judgment. Ramdhan, the plaintiffs father, resided at a place called Khanapur, Taluk Morsi, in the district of Amraoti and carried on business there; whilst his brother, one Joharmal, lived in the township of Chandur Bazar, in Taluk Ellichpur, where he had a shop. Both were Agarwallas by caste. Joharmal died in September, 1912, and the defendant Dhanraj claims to have been adopted by him some years before his death. On the death of Ramdhan in 1914, Dhanraj took possession of his estate, claiming to be entitled to Ramdhans property as the adopted son of his brother Joharmal. There appears to have been a proceeding under s. 145 of the Code of Criminal Procedure with regard to the possession of certain lands belonging to Ramdhan, and by an order of the District Magistrate made on September 17, 1914, the defendant was put in possession of that property also. In order to establish his right to the succession to Ramdhans estate, in opposition to the claim of Ramdhans rightful heir, the defendant alleged that he had been adopted in accordance with the rules prescribed by the Hindu law and that the essential rites were duly performed. He further alleged that Joharmal and Ramdhan were joint and undivided. In order to establish his right to the succession to Ramdhans estate, in opposition to the claim of Ramdhans rightful heir, the defendant alleged that he had been adopted in accordance with the rules prescribed by the Hindu law and that the essential rites were duly performed. He further alleged that Joharmal and Ramdhan were joint and undivided. The plaintiffs case, on the other hand, is that in the year 1908, when the formal adoption of Dhanraj took place, he was an orphan and as such could not be validly adopted under the Hindu law. She further controverted the defendants allegation that Joharmal and Ramdhan were joint. She alleged that they were separate in estate and carried on separate businesses and that consequently Dhanraj, even if he had been validly adopted, which he was not, could not claim the estate of Ramdhan. To the allegation of the plaintiff that in 1908, both the defendants parents being dead, he could not have been validly adopted, the defendant averred that some years before, namely, in 1903, his mother, who was alive at the time, gave him in adoption to Joharmal, although the usual ceremonies and documents connected with the adoption were completed in 1908. He further contended that Ramdhan was estopped by his conduct from impugning the validity of the adoption and that consequently, the plaintiff was affected by the same estoppel. On these respective allegations of the parties a number of issues were framed by the Additional District Judge, three of which only need consideration—namely (1.) whether the defendant was validly adopted; (2.) whether Joharmal and Ramdhan were joint in estate; and (3.) whether the plaintiff is estopped from challenging the validity of the defendants adoption. It is contended on the plaintiffs behalf that, unless the defendant can establish that the "giving and taking" required by the Hindu law took place in the lifetime of his mother in 1903, nothing which occurred in 1908 would constitute him a validly adopted son of Joharmal, or entitle him to the estate of Ramdhan, even if Ramdhan and Joharmal were joint. A mass of evidence was adduced on both sides; the Additional District Judge was of opinion that the defendant had established the adoption, and accordingly dismissed the suit. On appeal, the Court of the Judicial Commissioner, after a careful analysis of the evidence, came to a totally different conclusion. A mass of evidence was adduced on both sides; the Additional District Judge was of opinion that the defendant had established the adoption, and accordingly dismissed the suit. On appeal, the Court of the Judicial Commissioner, after a careful analysis of the evidence, came to a totally different conclusion. They have held that the defendant had failed to prove that there was a "giving and taking" as required under the Hindu law in 1903; nor were Ramdhan and the plaintiff "estopped" from impugning the validity of the defendants adoption. In view of the minute examination of the facts by the learned Judicial Commissioners, their Lordships are relieved of the necessity of discussing them in detail; they, therefore, propose to confine their attention to the salient features of the case. On May 25, 1908, two deeds were executed, one by Joharmal in favour of the defendant, whose parental name was Ghanasham, declaring that he was being adopted by Joharmal as a son and that thenceforth he would be called Dhanraj; the other was executed by the brothers of Dhanraj, the defendant, in favour of Joharmal, declaring that they had from that day forth given their younger brother Ghanasham to Joharmal in adoption. The deed of adoption executed by Joharmal is exhibit D. 63, and the agreement by the two brothers of Dhanraj is exhibit D. 62. This document D. 62 contains the passage, "Our mother gave him in adoption just in his childhood," on which the defendants allegation of the giving and taking" in 1903 mainly, if not entirely, rests. The plaintiff charges that this passage is an interpolation made after its execution for the purpose of corroborating the statements of witnesses as to the "giving and taking" in the lifetime of the mother. The reasoning of the Additional District Judge on this point appears to be open to criticism; he seems to think that as the evidence of the witnesses for the defendant was " consistent " and was corroborated by the passage in question in D. 62, their statements being thus corroborated he was of opinion that it could not be an interpolation. Relying practically on the statement in question contained in D. 62, in conjunction with the oral testimony, he came to the conclusion, as already stated, that the defendant had been validly adopted by Joharmal, and that, as Joharinal and Ramdhan were joint in estate, Dhanraj was entitled to the latters estate. The Judicial Commissioners consider the passage on which the Additional District Judge rested his decision, as corroborating the story of the defendants witnesses, was an interpolation. They also held against the defendant on the plea of estoppel. In view of their decision on the question of fact relating to the adoption, they did not consider it necessary to determine whether Joharmal and Ramdhan were separate or joint. In the appeal to His Majesty in Council, exception is taken to the conclusions of the Judicial Commissioners on both points. First, it is urged that the factum of a valid adoption in accordance with the rules of Hindu law is conclusively established on the evidence; secondly, that Ramdhan was estopped by his conduct and representations from questioning the validity of the adoption, which equally affects the plaintiff. Admittedly, under the Hindu law, it is essential to the validity of an adoption that the child should be "given" to the adopter by the father or, if he be dead, by the mother. No other person has the right, nor can such right be delegated to anybody else (Maynes Hindu Law, para. 132). Consequently, a boy who has lost both his parents cannot be adopted. In 1908 both the parents of the defendant were dead. In order to establish his adoption as valid under the Hindu law, he has put forward two allegations—namely, that his mother before her death went actually through the formal ceremony of " giving," and that before she died she delegated the authority " to give " to his two elder brothers. If she had already given him in adoption, the subsequent delegation of authority would seem to be superfluous. Any such delegation would, however, be invalid. The defendant, therefore, had to establish that in 1903, when his mother was alive, she gave him in adoption to Joharmal, and that consequently he is vested with all the rights that appertain to an adopted son under the Hindu system. The language of the deed of adoption, to which reference has already been made, requires careful attention. The defendant, therefore, had to establish that in 1903, when his mother was alive, she gave him in adoption to Joharmal, and that consequently he is vested with all the rights that appertain to an adopted son under the Hindu system. The language of the deed of adoption, to which reference has already been made, requires careful attention. After reciting that he has no male issue and old age has approached, he goes on to say "I have this day taken you in adoption before the panchas and with the consent of your brothers. You are my kinsman and your father was my gotraj bandhu. Consequently, for religious purposes and with a view to perpetuate my lineage, I have taken you in adoption, performing the adoption ceremony, presenting you with the turban and giving a feast to all the panchas. Therefore you have become the owner of my movable and immovable property from this day. You have acquired the same rights as my born son has from this day. None else than you is my heir. You have become the owner of my shop. From this day you will be named Dhanraj, son of Joharmal Gargoti. May you live long! This is my sincere blessing, I have executed this deed of adoption with my free will and pleasure. It is binding against my estate and heirs. Dated May 25, 1908. By the pen of Bhagwant Balaji of Chandur Bazar." It will be noticed that in this document there is no reference to the essential ceremony of "giving and taking" which, if performed, would naturally occupy the forefront of the deed. It expressly states in so many words that he (Joharmal) had taken the defendant in adoption " this day " (May 25, 1908) " before the panchas " (the principal members of the caste). No Brahmin or Jati (priest) is mentioned, and the ceremony performed to effectuate the adoption, "presenting him with a turban and giving a feast to the panchas," has no connection with religious rites. The last part of the document is precise in its language and in effect "You have acquired the same rights as my born son from this day.....From this day you will be named Dhanraj." The agreement executed by Kaluram and the other brother of the defendant is as follows " We both and Ghanasham are three real brothers. The last part of the document is precise in its language and in effect "You have acquired the same rights as my born son from this day.....From this day you will be named Dhanraj." The agreement executed by Kaluram and the other brother of the defendant is as follows " We both and Ghanasham are three real brothers. You and we are kinsmen of the same caste. You having no male issue, we have, with a view to perpetuate your line, given you in adoption our younger brother Ghanasham, 13 years of age, with our free will and pleasure this day, and having his adoption ceremony performed with our free will and consent have presented him with a turban. Ghanasham being regarded as your son has acquired the same rights as your born son would have had. He has become the owner of your movable and immovable property from this day. We both have ceased to have any interest whatsoever in that boy. And that boy has ceased to have any ownership to our property henceforward. The boy in question is given in adoption in the presence of you and us and the village panchas. Our mother gave (him) in adoption just in his childhood. From this day the boy in question is named Dhanraj, son of Joharmal, and will be so called in future also. May this family thrive! Our right of brotherhood to the said boy has been given up from this day. We have ceased to have any ownership whatsoever henceforward. If we set forth any right, it will be null and void by virtue of this document. We have executed this agreement with our free will and consent. It is binding against our estate and heirs. Dated May 25, 1908. By the pen of Bhagwant Balaji of Chandur." It will be noticed that it declares "Ghanasham, being regarded as your son, has acquired the same rights as your born son would have had. He has become the owner of your movable and immovable property from this day. That boy has ceased to have any ownership in our property henceforward. By the pen of Bhagwant Balaji of Chandur." It will be noticed that it declares "Ghanasham, being regarded as your son, has acquired the same rights as your born son would have had. He has become the owner of your movable and immovable property from this day. That boy has ceased to have any ownership in our property henceforward. The boy in question is given in adoption in the presence of you and us and the village panchas." After the passage charged by the plaintiff as having been interpolated, comes the following "From this day the boy in question is named Dhanraj, son of Joharmal, and will be so called in future also." Then comes the following passage "Our right of brotherhood has been given up from this day. We have ceased to have any ownership whatsoever henceforward." The reference in D. 62 to the giving of the boy by the mother, considering the importance of the ceremony under Hindu law, strikes one as cursory and creates the impression that the casualness of the reference was due to its compression owing to the exigencies of space. It is in these words "Our mother gave him in adoption just in his childhood." This solitary reference to a vitally important ceremony has been held by the Judicial Commissioners to be an interpolation. They point out that it was perfectly possible to insert this sentence immediately after the previous words. However that be, there is great force in their observation that the words alleged to be interpolated are quite inconsistent with the main purpose of, and the statements in, the documents D. 63 and D. 62. These two deeds, in their Lordships opinion, instead of supporting the evidence on behalf of the defendant, appear to contradict the allegation of a ceremony, and a real effective ceremony, in 1903. Bhagwant, the writer of the two deeds, was cross-examined respecting the reason why he had omitted in D. 63 all reference to the ceremony by the mother. His answer, in their Lordships opinion, is most unsatisfactory. He said as follows "There were two drafts. It did not strike me then that there was any difference between the actual facts and the recitals of the drafts. The recitals in the deeds were not inaccurate at the time of writing. His answer, in their Lordships opinion, is most unsatisfactory. He said as follows "There were two drafts. It did not strike me then that there was any difference between the actual facts and the recitals of the drafts. The recitals in the deeds were not inaccurate at the time of writing. (The recital about the name of Dhanraj starting that day is read out.) Strictly speaking, there is a mistake. It is customary to write in this way that the name is changed from the date of writing, and so I did not object to it. I do not remember which of the two documents was written first. Though I knew that the boy had been actually adopted I did not insert that as it was not in the draft. I have been writing documents for the last 35 to 36 years." Bhagwant professes to have been present at the ceremony said to have been performed in 1903. But neither Kaluram nor Chaturbai, the widow of Joharmal, who is supporting the defendant, mentions him. He is a professional "petition writer" and he gives no reason why, if he was present, no document was executed on that occasion. Another statement of his, to say the least, is extraordinary. He said, evidently in answer to a question why the ceremony of adoption was not completed in 1903 "The boy was given in adoption on Dashera day in Sambat 1960, but no writing was made that day. His mother and his brothers had come there. His mother gave the boy in adoption to Joharmal. No document was written then as they wanted to wait for an auspicious year. Joharmal executed exhibit D. 63 in my presence. Kaluram and Joharmal (his brother) executed exhibit D. 62 in my presence." According to him the auspicious year did not occur until 1908! The boys family lived at the village of Thugaon. The school register produced by the schoolmaster of that place shows that between 1903 and 1907 long after the alleged "giving and taking" he lived in his parental home in Thugaon. As the appellate Court points out, this circumstance is wholly inconsistent with his having been adopted in 1903, when it is said he was actually made over to Joarmal. The school register produced by the schoolmaster of that place shows that between 1903 and 1907 long after the alleged "giving and taking" he lived in his parental home in Thugaon. As the appellate Court points out, this circumstance is wholly inconsistent with his having been adopted in 1903, when it is said he was actually made over to Joarmal. Had he been then given in adoption he would have resided with his adopting parents, his name would have been changed, and he would have taken up his position as the adopted son of Joharmal. In the school register he is entered in his original name of Ghanasham. The question, why was he entered as Ghanasham if he had been adopted in 1903, is answered by the deeds executed on May 25, 1908. The statement of Chaturbai, the widow of Joharmal, contradicts in material particulars those of Kaluram, the brother of Dhanraj. In their Lordships opinion the oral evidence regarding an adoption in 1903 is wholly unworthy of credit. Their Lordships agree with the Judicial Commissioners in holding that the defendant has failed to establish his allegation of the adoption in 1903. But it has been strongly contended that Ramdhan and his heir are estopped by the provisions of s.115 of the Indian Evidence Act (I. of 1872) from questioning the adoption. That section runs as follows "Where one person has by his declaration, act, or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing." What are the "declarations, acts or omissions" of Ramdhan which are said to constitute the estoppel? It is not necessary to decide in this case whether a status that rests on religious rules and religious sanctions and involves the performance of religious duties can be established by mere estoppel. Assuming, however, that such a status can be established by applying the doctrine of equitable estoppel embodied in s. 115, so as to affect the rights of persons other than the adopter, it is necessary to consider in the first place what actually happened in 1908 and what were the acts and representations of Ramdhan which created the estoppel. Assuming, however, that such a status can be established by applying the doctrine of equitable estoppel embodied in s. 115, so as to affect the rights of persons other than the adopter, it is necessary to consider in the first place what actually happened in 1908 and what were the acts and representations of Ramdhan which created the estoppel. He is said to have brought the boy to Chandur Bazar from his native village, to have become a witness to the deed of adoption; allowed him to perform the cremation ceremony of Joharmal; and at the time of his marriage represented him to be the adopted son of Joharmal. The parties to this litigation belong to the caste or sect of Agarwallas. These Agarwallas, as has been pointed out in Bhagvandas Tejmal v. Rajmal (( 1873) 10 Bom. H. C. 241.), generally adhere to Jainism and repudiate the Brahminical doctrines relating to obsequial ceremonies, the performance of shraddh, the offering of oblations for the salvation of the soul of the deceased, nor do they believe that a son, either by birth or by adoption, confers spiritual benefit on the father. The Agarwallas are said to be divided into a number of sub-castes or sects. In Sheo Singh Rai v. Dakho (( 1878) L. R. 5 I. A. 87.) in the High Court of Allahabad, which afterwards came before the Judicial Committee, when the judgment was affirmed by this Board (Ibid. 107.), the parties belonged to the Saraoji sub-caste. In the present case it is not clear to what sub-sect Joharmal adhered, but the evidence shows that the defendant belongs to the Sekhavati sect. The majority of the defendants witnesses appear to be Moheshris. Whatever difference there might be between these sub-sects in the ritual of worship, there does not appear to be any in the rules relating to adoption recognized by the caste as a whole. The learned judges who decided that case in the High Court of Allahabad stated the difference between the Brahminical Hindus and the Jains in the following words "They differ particularly from the Brahminical Hindus in their conduct towards the dead, omitting all obsequies after the corpse is burnt or buried. The learned judges who decided that case in the High Court of Allahabad stated the difference between the Brahminical Hindus and the Jains in the following words "They differ particularly from the Brahminical Hindus in their conduct towards the dead, omitting all obsequies after the corpse is burnt or buried. They also regard the birth of a son as having no effect on the future state of the progenitor, and consequently adoption is a mere temporal arrangement and has no particular object." Among the Agarwallas the qualifying age for adoption extends to the thirty-second year; and the only ceremony consists in tying a turban round the head of the young man who is being adopted in the presence of the principal men of the community (the panchas) and giving them a feast. According to the document D. 63, as well as the agreement D. 62, this was the only ceremony performed in 1908, and it is exactly the ceremony referred to in Sheo Singh Rai v. Dakho. (( 1878) L. R 5 h A. 87.) Their Lordships have no doubt on the evidence that the story about a regular Hindu or, rather, Brahminical adoption in 1903 was invented with the object of giving to an ordinary Agarwalla adoption the rights of collateral succession, and with the same object the statement had been put forward that the defendant had been adopted by both brothers, Joharmal and Ramdhan, which is held to be illegal under the Hindu law. If the Brahminical fringe is taken off, the whole of the evidence in the present case points to a secular adoption in 1908; and so far as the representation and acts of Ramdhan are concerned, they only relate to that adoption. This Board in Gopee Loll v. Chundraolee Buhoojee (( 1872) L. R. I. A. Supp. 131,133.), on the question of estoppel, urged in similar circumstances, said as follows "It has been argued on the part of the appellant that the defendants in this case are estopped from setting up the true facts of the case, or even asserting the law in their favour, inasmuch [as] they have represented in former suits and in various ways, by letters and by their actions, that Luchminjee was the adopted son of Damodurjee adopted by Damodurjees widow, his mother. But it appears to their Lordships that there is no estoppel in the case. But it appears to their Lordships that there is no estoppel in the case. There has been no misrepresentation on the part of Luchminjee or the defendant on any matter of fact. They are alleged to have represented that Luchminjee was adopted. The plaintiffs case is that Luchminjee was in fact adopted. So far as the fact is concerned there is no misrepresentation, it comes to no more than this that they have arrived at a conclusion that the adoption which is admitted in fact was valid in law, a conclusion which in their Lordships judgment is erroneous; but that creates no estoppel whatever between the parties." A number of rulings of this Board and a decision of the Madras High Court have been referred to in support of the contention that the plaintiff is estopped. Closely examined, it will be seen that those cases relate to adoptions acquiesced in and recognized for a number of years by the person making the adoption, and the Courts considered in substance that a long course of recognition and acquiescence on the part of the person, who was best acquainted with the circumstances, gave rise to the inference that the conditions relating to the adoption were duly fulfilled. In Dharam Kunwar v. Balwant Singh (( 1912) L. R. 39 I. A. 142,148.) the estoppel was considered purely personal. Their Lordships are in entire agreement with the ruling of the Board in Gopee Lalls Case (( 1872) L. R. I. A. Supp. 131, 133.), and think that there is no substance whatever in the plea of estoppel raised by the defendant. On the whole case they are of opinion that the judgment of the Court of the Judicial Commissioner is sound and that this appeal should be dismissed with costs. The appellant has, however, taken some exception to the form of the decree made by the appellate Court. No such objections were either embodied in the grounds of appeal to this Board, or brought to the notice of the learned judges. It was only shortly before the hearing of the appeal here that notice was given to the respondent to the effect that objection would be urged against the decree on the hearing. Their Lordships think that to allow a litigant to bring forward at this stage exceptions to a decree, which have never been urged before, is open to very grave objection. Their Lordships think that to allow a litigant to bring forward at this stage exceptions to a decree, which have never been urged before, is open to very grave objection. The course adopted in the present case was reprehended by the Board in Sheo Singh Rai v. Dakho (L. R. 5 I. A. 87.) already referred to, and their Lordships propose to adhere to the principle laid down there. It seems, however, necessary that the decree as framed should be put into a more practical shape in order to avoid difficulties in the execution Court. [After pointing out that upon the pleadings there were issues as to the specific property which the plaintiff would be entitled to recover, their Lordships said] In these circumstances their Lordships think that the decree should run in the following terms (1.) That it should be declared that the plaintiff is entitled by right of succession to the estate of her father Ramdhan; (2.) that there should be a decree for possession of the immovable properties claimed by the plaintiff; (3.) that there should be a decree for the delivery of the ornaments and other movable property taken possession of by the defendant; (4.) that the defendant should deliver to the plaintiff all documents of title, securities for loans such as mortgages, decrees, etc., which came into his hands as appertaining to Ramdhans estate; (5.) that if necessary there should be an inquiry as to what was the stridhan property of the plaintiffs mother ; an account of what is due to Kaluram on the ornaments pledged to him ; and (6.) an account of the debts of, and outstandings belonging to, Ramdhans estate realized by the defendant with liberty to the parties to apply to the Court for directions. In case any of the debts have been barred by the wilful neglect or default of the defendant he would necessarily be liable for those debts. For the purpose of taking these accounts and giving effect to the decree generally a receiver should be appointed. Their Lordships will therefore humbly advise His Majesty that the appeal should be dismissed with costs, and that the amendments they have indicated should be embodied in the decree.