JUDGMENT Misra and Kanl, JJ. - This is a Plaintiff's appeal against a judgment and decree dated the 19th of April, 1940, passed by the Additional Civil Judge, Sitapur. The suit in the Court below was brought by Tirbeni Bakhsh Singh, husband of Appellant No. 1, and the remaining Appellants for possession of a zamindari in Sitapur district known as Sakran estate, a house in Sitapur town for mesne profits. Tirbeni Bakhsh Singh died since the suit was instituted and the name of his widow, Mst. Prem Jagat Kuer, was brought on the record as his legal representative. The Appellants claimed the suit property as reversioners of one Jangli Bakhsh on the death of his daughter, who had succeeded to the ilaqa without leaving any issue. 2. In order to appreciate the points that arise for determination in this appeal it is necessary to give a brief history of the devolution of this ilaqa since the advent of British rule in Oudh. The following pedigree which was set out in the plaint will give the relationship of the parties to the original owner of Sakran estate: 3. Partab Bali Singh was the head of the family to which the Appellants claimed to belong. In pre-British days he held a fabulist for two estates, Rehar and Sakran, The latter now consists of eleven villages. Partab Bali Singh had seven sons. One of them, Gandharp Singh, separated from the rest of the family taking Sakran estate as his share. Or the remaining Gend Singh died leaving one son, Girwar Singh, who died without issue. Zalim Singh died leaving a widow who adopted a son Umrao Singh. Umrao Singh was succeeded by his son Baldeo Bakhsh Singh. The present Appellants belong to the line of baldeo Bakhsh Singh. Barband Singh died leaving a son Madho Siagh. Madho Singh had a son Raghubar Siagh who died childless. 4. Bhagwant Singh, Dhaunkal Singh and Hindu Singh also died without leaving any children. Gandhrap Singh had two sons, Jangli Lakhsh and Sheo Singh. Jangli Bakhsh married Ambar Kuer. Sheo Singh's wife was agar Kuar. jangli Bakhsh had no son. He left a daughter Mst. Inder Kuer. Sheo Singh had two sons, Hardeo Bakhsh and Shankar Bakhsh, both of whom died in their father's lifetime. Shanker Bakhsh left a widow Jitan Kuer. Gandhrap Singh had two sons, Jangli Lakhsh and Sheo Singh. Jangli Bakhsh married Ambar Kuer. Sheo Singh's wife was agar Kuar. jangli Bakhsh had no son. He left a daughter Mst. Inder Kuer. Sheo Singh had two sons, Hardeo Bakhsh and Shankar Bakhsh, both of whom died in their father's lifetime. Shanker Bakhsh left a widow Jitan Kuer. inder Kuer, daughter of Jangli Bakhsh, married Deep Singh, taluqdar of Sewaijpur in Hardoi district, in 1872 Deep Singh died to 1891. He left a son Karan Singh who died in 1909 without issue, leaving a widow Khem Kuer. 5. At the first regular settlement claims were put in by seven person with regard to the succession to Sakran estate. Sheo Singh was dead at that time. He died in 1858, and Jangli Bakhsh in 1861, Jangli Bakhsh's widow ambar Kuer also died in 1863. The estate had been entered in the records of that time in the name of Inder Kuer and Agar Kuer. The seven claimants to the estate at the first regular settlement were. 1. Agar Kuer, widow of Sheo Singh, who claimed half the estate in addition to the half already recorded in her name; 2. Jitan Kuer, widow of Shankar Bakhsh, claimed half the estate as against Agar Kuer ; 3. Baldeo Bakhsh Singh claimed the whole estate against Agar Kuer and Inder Kuer. 4. Madho Singh claimed the whole estate against Agar Kuer and Inder Kuer ; 5. Debi Singh claimed half the estate against Agar Kuer on the allegation that he was adopted son of Sheo Singh; 6. Beni Singh claimed half the estate on the allegation that he had been adopted by Agar Kuer; and 7. Inder Kuer claimed the whole estate as the daughter of Jangii Bakhsh. 6. These seven claims were finally decided in 1858-9. Inder Kuer was held entitled to a life interest in Sakran estate and Agar Kuer was given the right of maintenance. No determination was made as to who was the nearest reversioner entitled to the estate after Inder Kuer. 7. A claim to Rehar estate, which was in possession of Baldeo Bakhsh Singh was subsequently put forward by Madho Singh. It was dismissed in 1871. It appears that since his marriage with Inder Kuer, Deep Singh remained in possession of not only his own taluaqa of Sewaijpur but also of his wife's ilaqa Sakran. 7. A claim to Rehar estate, which was in possession of Baldeo Bakhsh Singh was subsequently put forward by Madho Singh. It was dismissed in 1871. It appears that since his marriage with Inder Kuer, Deep Singh remained in possession of not only his own taluaqa of Sewaijpur but also of his wife's ilaqa Sakran. On Deep Singh's death sakran was mutated in the name of their son Karan Singh. He remained in possession till his death in 1909, and made a number of alienations during this period. Defendants Nos. 2 to 9 whose names appealed in the array of parties in the lower Court and who have not been impleaded in this appeal, were transferees of portions of Sakran estate from Karan Singh. On the death of Karan Singh there was a dispute beetween his mother Inder Kuer and his widow Khem Kuer Ultimately on the 7th May, 1909, they arrived at an agreement. Under its terms Khem Kuer was declared owner of the estate, and Inder Kuer was allotted maintenance during her lifetime. She was permitted to retain possession of Sakran estate in lieu of her maintenance In August, 1909, Baldeo Bakhsh Singh claiming as the presumptive reversioner of Jangli Bakhsh Singh instituted a suit for a declaration that the deed of the 7th of May, 1909, executed by Inder Kuer and Khem Kuer, was invalid, fictitious and void against him and that Inder Kuer had only a life interest in the estate. Both Inder Kuer and Khem Kuer were impleaded as Defendants. The suit was dismissed by the trial Court. An appeal was preferred against this decision before the Judicial Commissioner of Oudh. Khem Kuer died during the pendency of the appeal. The appeal was successful against Inder Kuer and it was declared that Baldeo Bakhsh Singh was not bound by the deed of the 7th of May, 1909. 8. It was further declared that Inder Kuer had only a life interest in Sakran estate without power of trasnfer. Inder Kuer preferred an appeal to the Privy Council against this decision. The appeal was dismissed and the decision of the Judicial Commissioners became final. She, however, remained in possession of the estate till her death in 1937. 9. 8. It was further declared that Inder Kuer had only a life interest in Sakran estate without power of trasnfer. Inder Kuer preferred an appeal to the Privy Council against this decision. The appeal was dismissed and the decision of the Judicial Commissioners became final. She, however, remained in possession of the estate till her death in 1937. 9. On the 13th of April, 1930, Inder Kuer adopted Defendant Respondent No. 1, Harihar Bakhsh Singh, as a son to her husband, and in 1933 she purported to surrender her life estate in taluqa Sakran in favour of the adopted son who has since been in possesssion of this estate. 10. No reference was made by the Appellants in their plaint to this adoption or to the alleged surrender of her life estate by Inder Kuer in favour of the adopted son. The Court below has found that Harihar Bakhsh Singh was actually adopted by Inder Kuer and that a deed by which she purported to surrender her life estate to the adopted son was executed by her. These findings were not challenged before us. But the legality of the adoption was hotly contested. 11. It further appears that by a deed dated the 22nd of December, 1927, Inder Kuer purported to create a waqf by which village Sakran was dedicated to deity Sri Ram Chanderji for the benefit of the souls of her deceased father and husband. 12. The suit in the Court below was originally brought against ten Defendants, who were generally stated to be wrongfully in possession. Though nothing was said how the Defendants acquired possession of the suit property, it will be seen from what has been stated above that Defendant No. 1, Harihar Bakhsh Singh, claimed to be in possession of the suit property as the adopted son of Deep Singh. Defendants Nos. 2 to 9 were alienees to whom portions of the estate had been transferred by Karan Singh (son of Deep Singh and Inder Kuer) in his lifetime. Defendant No. 10 was the deity, Sri Ram Chanderji. 13. On an objection raised by the Defendants, four other persons Defendant Nos. 11 to 14, trustees of the waqf created by Inder Kuer on the 22nd of December, 1927, were added as Defendants. Matters outstanding between the Plaintiffs and Defendants Nos 2 to 9 were settled by mutual arrangement. Defendant No. 10 was the deity, Sri Ram Chanderji. 13. On an objection raised by the Defendants, four other persons Defendant Nos. 11 to 14, trustees of the waqf created by Inder Kuer on the 22nd of December, 1927, were added as Defendants. Matters outstanding between the Plaintiffs and Defendants Nos 2 to 9 were settled by mutual arrangement. To compromise petitions embodying the settlement were held in the trial Court and a decree in accordance therewith was passed against those Defendants under Order 23 Rule 1 of the Code of Civil Procedure. They are not parties to this appeal and it is therefore necessary to consider only the defence put forward by Respondent No. 1, Harihar Bakhsh. Singh and by the trustees on behalf of deity Sri Ram Chanderji. 14. Harihar Bakhsh Singh Defendant, No. 1 denied pedigree set out in the plaint so far as it related to the Plaintiffs' branch. It was admitted that Zalim Singh was one of the sons of Partab Bali Singh. With regard to Umrao Singh, however, it was averred that he was the son of a Brahman who was neither adopted nor could be legally adopted under the Hindu Law as a son by Zalim Singh. Similarly with regard to Baldeo bakhsh Singh it was pleaded that he was not the natural born son of Umrao Singh but a Bania by caste. It was further pleaded that in 1891 on her son Raja Karan Singh attaining majority Inder Kuer surrendered the Sakran estate in his favour and that Karan Singh and after him his widow Khem Kuer remained in adverse possession of the estate for over 12 years and the claim was barred by the law of limitation. With regard to himself it was averred by Harihar Bakhsh Singh that on the 13th of April, 1930, he was adopted by Inder Kuar as a son to her husband under a family custom by which an adoption could be made by a Hindu widow without any permission from her husband After his adoption tnder Kuar surrendered her life estate in Sakran estate in his favour in 1935. 15. 15. With regard to the trust created in favour of Sri Ram Chanderji, Defendant No. 10, it was averred that the deed dated the 22nd of December, 1927, by which this waqf was created, was a good and valid deed executed by Inder Kuer for the benefit of the souls of her husband and her father. 16. The house in Sitapur town, it was pleaded was the property of Raja Karan Singh to which the Plaintiffs could have no claim. 17. By way of replication to the written-statement filed by Harihar Bakhsh Singh the averments made so far as they were inconsistent with the plaint were denied and it was pleaded that in view of the litigation in the Settlement Court in the year 1868-9, and the decision of their Lordships of the Privy Council in the declaratory suit brought by Baldeo Bakhsh Siagh on the death of Karan Singh iq the year 1909, the following points were res judicata and could not be re-agitated in the suit: 1. That Inder Kuer was entitled to remain in possession of Sakran estate as the daughter of Jangli Bakhsh Singh for life without any power of transfer, 2. that Baldeo Singh, ancestor of the present Plaintiffs, was the next reversioner of Jangli Bakhsh Singh, 3. That Umrao Singh was the son of Zalim Singh; and 4. That Baldeo Bakhsh Singh was the son of Umrao Singh. 18. The adoption of Harihar Bakhsh Singh by Inder Kuar was denied and its validity was challenged on two grounds: (1) because it purported to have been made without Inder Kuer'a husband's permission and (2) because Karan Singh, son of Inder Kuer, died leaving a widow Khem Kuer ceased to have any further power to adopt a son. Parties went to trial on the following issues: 1. Was Inder Kuer lin possession of the Sakran Estate as daughter of Jangli Bakhsh Singh, for life without power of transfer as a daughter under the Hindu Law? 2. Was Umrao Singh an adopted son of Zalim Singh and was his adoption valid? 3. Was Umrao Singh the son of Brahman and was his adoption therefore invalid ? 4. Was Baldeo Singh a legitimate son of Umrao Singh ? 5. Did Rani Inder Kuer surrender her interest in her father's estate in favour of her son, Karan Singh, in 1891? 3. Was Umrao Singh the son of Brahman and was his adoption therefore invalid ? 4. Was Baldeo Singh a legitimate son of Umrao Singh ? 5. Did Rani Inder Kuer surrender her interest in her father's estate in favour of her son, Karan Singh, in 1891? If so, did Karan Singh become full owner of the estate ? 6. Did Raja Kuan Singh acquire full title to the Sakran estate by adverse possession ? 7. (a) Was the Defendant No. 1 adopted by Rani Inder Kunwar on the 13th of April, 1930 ? (b) Was the adoption valid? If so, how does it affect the suit? 8. Are the Plaintiffs barred by the rule of res-judicata by reason of decision in suit No. 61 of 1909 from asserting that Karan Singh did not become full owner of the Sakran estate by adverse possession ; 9. Is the suit in time, or is it barred by limitation: 10. Is the Defendant No. 1 barred by rule of res-judicata from disputing the following points by reason of the decisions referred to in paragraphs 4 to 8 of the point and paragraph 31 of the repliation: (A) That Rani Inder Kuer was entitled to possession of the Sakran estate as the daughter of Jangli Bakhsh Singh for her life and without power of transfer. (B) That Umrao Singh was the Validly adopted son of Zalim Singh. (C) That Bildeo Bakhsh Singh was the son of Umrao Singh. (D) That Baldeo Bakhsh Singh was the next reversioner of Jangli Bakhsh Singh and entitled to succeed to the Sakran estate on the death of Inder Kuer. (E) That Rani Inder Kuer surrendered her interest in her father's estate of Sakran in favour of her son Karan Singh in 1891. 11. Did Rani Inder Kuer create any waqf as mentioned in paragraph 26 of the written statement of Defendant No. 1; If so, is it valid? 12. Are the Trustees of the waqf necessary parties to this suit ? 13. (a) Is the house mentioned in paragraph 10 of the plaint part of the Sakran estate? Or is it the personal property of Karan Singh? (b) Is the Defendant No. 1 barred from taking the plea raised in the above issue by res-judicata ? 14. Are the transfers in favour of the Defendants 2 to 9 genuine and binding on the Plaintiff? 15. Or is it the personal property of Karan Singh? (b) Is the Defendant No. 1 barred from taking the plea raised in the above issue by res-judicata ? 14. Are the transfers in favour of the Defendants 2 to 9 genuine and binding on the Plaintiff? 15. Was Karan Singh the ostensible owner of the properties transferred and are the Defendants 8 to 9 bona fide transferees for value ? 16. Were the transfers in question affected for legal necessity. If so, its effect ? 19. Points covered by issues 12 to 16 no longer arise for consideration and no arguments were addressed to us on those points at the bearing of the appeal. With regard to issue 12 the trial Court observed that the trustees having been impladed as Defendants in the Suit, the issue became unnecessary. Issue 14 to 16 related to matters with which Defendants 2 to 9 were concerned. They are not parties to this appeal. 20. The finding of the trial Court with regard to the house in Sitapur town (issue No. 13) which was against the Plaintiff's, was not challenged at the hearing. 21. The trial Court answered issues 1 and 7 in the affirmative. Issues 6, 8 and 9 were not pressed in the trial Court and hence found against the Defendant Respondent No. 1. Points covered by issues 2, 3, 4 and issues 10, (A) to (D) were held to be res-judicata. Issues 5 and 11 (E) were found against Harihar Bakhsh Singh. Under issue 11 it was found that the waqf was created by Inder Kuer, but the question whether it was a valid waqf was not determined. 22. Having found that Harihar Bakhsh Singh was validly adopted by Inder Kuer on the 13th of April, 1930, as a son to her husband, the learned Additional Civil Judge dismissed the suit with costs. 23. Four main points arise for consideration in this appeal: (1) Whether Harihar Bakhsh Singh was validly adopted by Inder Kuer as a son to her husband, (2) whether the Plaintiffs are the legitimate descendants of Zalim Singh and the next reversioners of Jangli Bakhsh, (3) whether Inder Kuer surrendered her life estate in Sakran in favour of her son Raja Karan Singh, and (4) whether the waqf created by Inder Kuer in 1927 is a good and valid trust under the Hindu Law. 24. 24. We will deal with these points in order. The fact that Harihar Bakhsh Singh was adopted by Inder Kuer as a son to her husband Raja Deep Singh on the 13th of April, 1930, was not disputed before us. In the trial Court the averment that Harihar Bakhsh Singh was so adopted was challenged. The finding of the Additional Civil Judge on this point was in favour of Defendant Respondent No. 1. No arguments against that finding were addressed at the hearing of the appeal. Its validity was, however, challenged on two grounds. (1) That as Raja Karan Singh died leaving a widow Khem Kuer, Inder Kuer's power to adopt a son after his death ceased to exist, and that Khem Kuer's death without having adopted a sou to her husband could not revive it, and (2) that the alleged custom that a widow in the family of Raja Deep Singh could adopt without the permission of her husband, whereon Defendant Respondent No. 1 relied was not established. 25. We may take up the question of custom first. It was pleaded on behalf of Harihar Bakhsh Singh by paragraph 22 of his written statement That there was no issue of the union of Raja Karan Singh and Rani Khem Kuer. Rani Khem Kuer having died without making any adoption, Rani Inder Kuer lawiully and validly adapted him. who was also a Sombansi Thakur, on the 13th of April, 1930, according to Shastras and custom of Daryao Singh's branch of the family under which no permission of the husband was required to make an adoption, and declared the same adoption by writing dated the 4th October 1932. 26. It will thus be seen that according to the Defendant Respondent No. 1's averment there was a custom in the family of Daryao Singh under which a widow could adopt a son without her husband's permission. Reliance in support of this custom was placed on entries in two wajib-ul-araiz and some oral evidence. The witnesses called, it may further be mentioned, attempted to prove two instances in which this custom was said to have been followed. The two wajib-ul-araiz are Exs. A2 and A135. Ex. A2 is the wajib-ul-arz of Sewaijpur, the village to which Raja Daryao Singh, Raja Deep Singh and Raja Karan Singh belonged. This is the village after which their estate is named. The two wajib-ul-araiz are Exs. A2 and A135. Ex. A2 is the wajib-ul-arz of Sewaijpur, the village to which Raja Daryao Singh, Raja Deep Singh and Raja Karan Singh belonged. This is the village after which their estate is named. Paragraph 3 of this wajib-ul-arz runs as follows: This taluqa is my client's own property. There is no other co-sharer or coparcener therein. And the brothers of the Raja who are Kuers, get maintenance allowance. Alter this taluqdar, the son who is capable of gaddinashini, becomes the Raja. No distinction is made on the ground of being old and young. The custom of adoption is to the effect that the Raja, who is issueless, can firstly adopt any boy out of his nearest collateral descending from the same grandfather, but in case such boy be not found, then he can adopt one from his own family. But be cannot adopt any one except that belonging to the Thakurs of Sombansi caste. And the issueless widow of the Raja after the death of the Raja remains the owner of the estate as long as she lives. And according to the family custom she has the power to adopt. lf the Raja has two or three wives of the same caste, then the eldest Rani becomes the owner thereof and ail the other Ranis obey her. And if any Raja has a number of wives and all have issue, then out of them the issue of the eldest Rani who is able and competent, succeeds to the Gaddi. And if the issue of other Ranis are incapable then the issue of any Rani who is capable and competent succeeds to the Gaddi. 27. It was contended on behalf of Defendant Respondent No. 1 and the contention was accepted by the trial Court that under the custom recorded in this wajib ul-arz Rani Inder Kuer could adopt a son without her husband's permission. The custom recorded in this document, as will be seen, is altogether silent on the question of permission of the husband. All that it says is that a Raja who has no issue can at first adopt a son from among his nearest collaterals. But in case such a boy cannot be found, he can adopt one from his own family. There is a definite prohibition against his adopting any one except a Sombansi Thakur. All that it says is that a Raja who has no issue can at first adopt a son from among his nearest collaterals. But in case such a boy cannot be found, he can adopt one from his own family. There is a definite prohibition against his adopting any one except a Sombansi Thakur. Then there follows the passage on which reliance was placed on behalf of Defendant Respondent No. 1 in support of the alleged custom. This passage reads: And the issueiess widow of the Raja after the death of the Raja remains the owner of the estate as long as she lives. And according to the family custom she has the power to adopt, 28. It was argued before the trial Court that the words "according to the family custom she has the power to adopt", which refer to a sonless, widow, impliedly conferred upon her a power to adopt without her husband's permission. It is well settled that under the Banares School of Hindu Law, which is followed in this part of the country, a widow cannnot adopt a son without the permission of her husband. The Defendant's case in the trial Court was that the family custom referred to in the wajib-ul-arz would be a mere statement of the Hindu Law unless it was implied that she could adopt without the permission of her husband. The Additional Civil Judge in the Court below, who accepted this contention, relied mainly on the use of the words "according to the family custom" and inferred therefrom that the custom mentioned gave the widow an absolute power of adoption, unfettered by the ordinary restrictions of Hindu Law. We are unable to agree with this view. The language does not warrant such a construction. The plain meaning of the passage referred to in our opinion is clear. Under the ordinary Hindu Law a person who has got no son, or grandson or great grandson can adopt a son to himself. The adopted son must, however be of the same caste as his adopting father, that is, a Brahman may not adopt a Kshattriya or vice versa. 29. According to the custom prevalent in Raja Daryao Singh's family, certain restrictions are placed on this power of adoption. According to this custom an issueless Raja must adopt a boy from among his nearest collaterals'. 29. According to the custom prevalent in Raja Daryao Singh's family, certain restrictions are placed on this power of adoption. According to this custom an issueless Raja must adopt a boy from among his nearest collaterals'. Jo Raja lawalad hota hai to pabis minjumla ham jaddiyan qarth far apne ke kisi larss ko matabanna kar sakta hai. 30. If such a boy is not available, then he may adopt one from among his remoter collaterals. But in no case can he under the custom prevalent in his family adopt a person who is not a Sombansi Thakur. 31. The matter being thus governed by custom, it was necessary to mention whether the power given to a widow by the Hindu Law to adopt a son to her husband was also subject to this custom or not. Therefore the wajib-al-arz states that she has, according to family custom a right to adopt. The words in the vernacular are: aur hash rewaj khan iannsko akhtiyar malbanna ka hasil hota hai. 32. The distinction between the two expression, "she has, according to family custom a right to adopt" and "she has a right to adopt according to the family custom in the English, language is clearly and easily understood. The first means that the right of adoption is conferred upon her by the family custom; while the other signifies that her power of adoption is controlled by the family custom. That she has a power to adopt under the law is assumed under the second expression. This distinction is not so explicit in the Hindustani language. The expression "aur hasb rawaj khandun usko akhtiyar mutabana ka hasil hota hoi" is susceptible of either meaning conveyed by the two expression mentioned above. But in the context in which the passage occurs, it can legitimately be construed to mean only that her power of adoption is controlled by the family custom. 33. In other words, the widow's power of adoption is subject to the same restrictions as that of her husband. It would be unreasonable to assume that though the power of the husband to adopt a son was restricted by the limitations mentioned in the wajib-ul-arz, his widow, who, when she adopts exercises only an authority given to her by her husband, can take in adoption any one whom she likes altogether uncontrolled by the family custom. It would be unreasonable to assume that though the power of the husband to adopt a son was restricted by the limitations mentioned in the wajib-ul-arz, his widow, who, when she adopts exercises only an authority given to her by her husband, can take in adoption any one whom she likes altogether uncontrolled by the family custom. This would on the face of it be highly illogical. Accordingly, though the language used may admit of two constructions, we should put upon it the one which is reasonable and is warranted by the context. The acceptance of the other inter-pretation would lead us into anomalies and at the same time be of no help to Harihar Bakhsh Singh. 34. It is considered a duty for every Hindu to ensure that oblations would be offered to deceased ancestors. This can be done only if there are members of succeeding generations to carry out the behest. The existence of a son, natural born or adopted, is therefore considered necessary If there is no natural born son, provision is male for the continuation of the line by adoption. The right to add a member to the family by an artificial process is, however, restricted by strict rules. This power can be exercised according to the Benares School by every Hindu who has no son, grandson or great-grandson, or in the exercise of a delegated power by his widow. A widow can, however, under the law prevalent in this part of the country, adopt only with the permission of her husband. There are other restrictions on the power of adoption thus conferred which is not free and unfettered in all respects. For instance an orphan cannot be validly adopted in the absence of a custom to the contrary; nor can a person be adopted (unless there be a custom to the contrary) whose mother in her maiden state the adopter could not have legally married. 35. If we were to accept the contention put forward on behalf of Harihar Bakhsh Singh, a widow in the family Raja Daryao Singh will not be subject to any such limitation in the matter of adoption. The right conferred by the alleged custom upon the widow would be more in the nature of a secular right rather than one having its origin in a spiritual necessity as contemplated by the Hindu Law. The right conferred by the alleged custom upon the widow would be more in the nature of a secular right rather than one having its origin in a spiritual necessity as contemplated by the Hindu Law. We are clear that it is not permissible to put any such construction upon this wajib-ul-arz. 36. The provision of the wajib-ul-arz relating to adoption by a widow is silent on the question whether such an adoption can be made with or without the permission of the husband. Unless the custom is purely secular in its character, it must be taken to be a modincation of the Hindu Law of adoption to the extent special in the wajib-ul-arz. That the wajib-ul-arz conferred upon a widow of the family of Raja Daryao Singh a wholly secular right of adoption is a proposition which must be ruled out of consideration; nor did the Learned Counsel for Harihar Bakhsh Singh put forward any such contention. The question must, therefore, be determined on the assumption that the custom relied on only modified the Hindu Law to the extent indicated in the wajib-ul-arz. It was decided by the late Court of the Judicial Commissioner of Oudh in Dhonde Singh v. Sant Bakhsh Singh (1900) 3 OC 181 that where a construction can be put upon a wajib-ul-arz which is compatible with the rules of Hindu Law, that is the proper construction to be placed upon it. This dictum was referred to with approval by a Bench of this Court in Smt Bakhsh Singh v. Bhagwan Bakhsh Singh (1930) 7 OW N 1082 (1085). Applying that principle to the facts of the present case we hold that the contention of the Learned Counsel for Harihar Bakhsh Singh Ex. A2 records a custom under which a widow could adopt a son to her husband without the permission of her husband cannot be accepted. 37. In support of his contention Learned Counsel for Respondent No. 1 strongly relied upon a decision of their Lordships of the Judicial Committee in the case of Bish-wanath Singh v. Jugal Kishore (1923) 50 I. A. 179. In that case a widow of a Hindu governed by the Mitak-shara made an adoption without his authority. 37. In support of his contention Learned Counsel for Respondent No. 1 strongly relied upon a decision of their Lordships of the Judicial Committee in the case of Bish-wanath Singh v. Jugal Kishore (1923) 50 I. A. 179. In that case a widow of a Hindu governed by the Mitak-shara made an adoption without his authority. The evidence that there was a custom in the family of the deceased under which such an adoption was valid consisted of statements as to the right of widows to adopt sons to their deceased husband contained in the wajib-ul-araiz of eight villages which had been recorded in the settlement of 1871, that is about 44 years before the adoption in question. One of those villages was Bamhnawan in which the widow's husband had lived; at least two other of the villages were villages in which he or members of his family were interested as proprietors; and the remaining four villages were villages in which members of his caste were interested, although their relationship with his family was not proved, There was also some oral evidence of witnesses in support of the custom. In the wajib-ul-arz of Bamhnawan and in some other wajib-ul-araiz it was stated that widows could adopt sons without having had the authority of their husbands to adopt. In the other wajib-ul-araiz it was simply stated that the widows could adopt. The Subordinate Judge who construed these wajib-ul-araiz was of opinion that those statements meant the same thing and found that the custom was proved. The appellate Court was of opinion that the mere statement in a wajib-ul-arz that a widow could adopt meant that a widow, who had the authority of her husband to adopt, could make an adoption, and consequently it held that the statements as to the custom contained in the wajib-ul-araiz, which were produced in evidence, were not consistent, and that the custom was not proved. Their Lordships of the Judicial Committee differing from the opinion of the appellate Court agreed with the view taken by the Subordinate Judge. Their Lordships of the Judicial Committee differing from the opinion of the appellate Court agreed with the view taken by the Subordinate Judge. In the course of their judgment they observed as follows: It did not occur to the learned Judges of the appellate Court that if the statement that a widow could adopt meant that she could adopt if she had had the authority of her husband to adopt, the statement was not a statement of a special family custom, and was unnecessary, as it would be merely a statement of a right which a Hindu widow of a sonless Hindu enjoys everywhere in India, except possibly in families governed by the law of the Mithla School. 38. Respondent No. 1's Counsel emphasised, the passage quoted, and cited it as an authority for the proposition that wherever a wajib-ul-arz. in Oudh recorded a custom stating simply that widows could adopt it must be taken as conferring upon the widows of that family a power to adopt sons to their husbands Without their permission. We are clear that no such proposition was laid down by their Lordships in Bishwanath Singh's case. A similar contention was put forward in the case of Bisheshwar Bakhsh Singh v. Thakur Bishwanath Singh before a Bench of this Court in F. C. Appeal No. 75 of 1932 decided on the 22nd of August, 1934, and Bishwanath Singh's case (Supra) was relied on in support of the contention. It was pointed out by the Beach in the course of their judgment that in the case before the Judicial Committee there was a group of wajib-ul-araiz which dearly stated that a widow could adopt without any authority from her husband there was another group which stated merely that a widow could adopt. All these wajib-ul-araiz related to villages with which the members of the family of the deceased were connected. In these circumstances their Lordships held that the two classes of wajib-ul-araiz meant the same thing, and by placing this interpretation their Lordships reconciled all the wajib-ul-araiz before them. 39. In the present case Respondent No. 1 has produced only one more wajib-ul-arz, Ex. A135 (the wajit-ul-arz of village Ghoranki Nahar, pargana Katari, district Hardoi). This wajib-ul-arz was dictated by a number of persons who had descended from the same common ancestor as Raja Daryao Singh, but had migrated to a neighboring district. 39. In the present case Respondent No. 1 has produced only one more wajib-ul-arz, Ex. A135 (the wajit-ul-arz of village Ghoranki Nahar, pargana Katari, district Hardoi). This wajib-ul-arz was dictated by a number of persons who had descended from the same common ancestor as Raja Daryao Singh, but had migrated to a neighboring district. This wajib-ul-arz also contained a record of the custom relating to adoption in the following words: The childless wife from her husband's family, and the childless co-sharer from his family, have got power of adoption. 40. We fail to see how it is possible for Harihar Bakhsh Singh to derive any help in support of his contention as to the custom of adoption from this wajib-ul-arz. This, like the wajib-ul-arz, Ex. A2, is silent on the question of permission and naturally we cannot read into this record of custom an implication that the power of adoption referred to here is a power to adopt without the permission of her husband. On the other hand there are on record at least three other wajib-ul-araiz, (of Amarta Ex. 32, of Kanhari Ex. 35 and Khatauli Ex. 38) dictated by the collaterals of Raja Daryao Singh which make no mention of any custom of adoption. We art of opinion that the principle laid down by their Lordships of the Judicial Committee in Bishwanath Singh's case 3 was that where there are several wajib-ul-araiz dictated by the members of the same family recording a custom in language which though not inconsistent is not the same in each case, but there are reasons to infer that they all refer to the same custom, they should, in spite of the difference in language, be so construed as to make the different wajib-ul-araiz consistent with one another. Applying this principle to the facts of the present case we are constrained to hold that the Additional Civil Judge was in error in placing upon Ex. A2 a construction that it authorised adoption of a son by a widow without the permission of her husband. 41. We may mention that Exs. 32, 35 and 38 along with four other wajib-ul-araiz were produced by the Appellants in the lower Court but were not admitted in evidence by the trial Judge on the ground of their late production. A2 a construction that it authorised adoption of a son by a widow without the permission of her husband. 41. We may mention that Exs. 32, 35 and 38 along with four other wajib-ul-araiz were produced by the Appellants in the lower Court but were not admitted in evidence by the trial Judge on the ground of their late production. It appears that in the trial Court, D.W. 17 Bachchu Singh, deposed on the 31st of July, 1939 about the existence of a custom in the family of Daryao Singh under which a widow could adopt a son without the permission of her husband. The witness stated that his father Lochan Singh had told him about the custom. The wajib-ul-arz of Ghoranki Nahar Ex. A135 was dictated among others by Lochan Singh and made mention of a custom of adoption. Accordingly the next day (1st of August, 1939) an application with copies of the wajib-ul-arz and of its verification was filed for admission of these documents in evidence to corroborate the witness. The learned trial Judge allowed the application and the documents were admitted in evidence. Reference in the proceedings of the learned Judge is made in this connection to Section 32(4) and Section 158 of the Evidence Act. Thereupon the Plaintiff's requested the learned Judge to admit as part of their evidence the wajib-ul-araiz of seven villages, Amarta, Kanhari, Khatauli, Salwari, Samar Jhala, Sahab-ud-dinpur and Birwan on the ground that these were wajib-ul-araiz dictated by the collaterals of the Raja of Sewaijpur, and that they did not record any such custom as was relied on by Harihar Bakhsh Singh. All the applications made by the plain-tiffs for the admissions of these documents were rejected. With regard to the last of these four documents, it was contended that according to Ex. A2 these villages formed part of Sewaijpur estate, while as regards the wajib-ul-araiz of Amarta, Kanhari and Khatauii it was urged that D.W. 2 Dammar Singh, Jagjiwan Singh D.W. 16, and Kunwar Shankar Bakhsh D.W. 7 examined on behalf of Harihar Bakhsh Singh belonged respectively to these three villages. They had deposed about the existence of the custom pleaded by Harihar Bakhsh Singh. 42. The wajib-ul-araiz of these villages were dictated by the ancestors of these witnesses, and they made no mention of any custom of adoption. They had deposed about the existence of the custom pleaded by Harihar Bakhsh Singh. 42. The wajib-ul-araiz of these villages were dictated by the ancestors of these witnesses, and they made no mention of any custom of adoption. Thus they gave a lie to the evidence of these witnesses and were admissible to contradict them. As already stated the Plaintiffs' request for admission of these documents was rejected by the learned trial Judge and the documents were excluded from evidence. Accordingly an application was made on behalf of the Appellants before us for the admission of these documents. 43. The law governing the production of additional evidence in the appellate Court is contained in Order 41 Rule 27 of the Code of Civil Procedure. (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary in the Appellate Court. But if (a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or (b) the evidence sought to be adduced by a party to the appeal, which after exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree or order under appeal was passed or made or (c) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined. (2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission. The present case is covered by Sub-section (a) of the above rule. D.W. 2 Dammar Singh, D.W. 16 Jagjiwan Singh and D.W. 7 Kunwar Shankar Bakhsh deposed that they had learnt of the custom about which they gave evidence from their ancestors. The wajib-ul-araiz of Amarta, Kanhari and Khatauli were dictated by the ancestors of these witnesses, and they were admissible as pieces of evidence to contradict the statement of these witnesses about the custom deposed to by them. We are clearly of opinion that the same principle on which Ex. The wajib-ul-araiz of Amarta, Kanhari and Khatauli were dictated by the ancestors of these witnesses, and they were admissible as pieces of evidence to contradict the statement of these witnesses about the custom deposed to by them. We are clearly of opinion that the same principle on which Ex. A135 was allowed to come oa record applies to the wajib-ul-araiz of Amarta, Kanhari and Khatauli, and the learned Judge in the Court below was not right in excluding them from evidence. This principle, however, would not apply to the four other wajib-ul-araiz which we were asked to admit in evidence. We accordingly allow the Appellants' application so far as it relates to the admission of the above mentioned three wajib-ul-araiz and the documents showing who were their executants as well as the verification of those wajib-ul-araiz. 44. An application for admission of the wajib-ul-arz of Bazpur Nathaura which was allowed to be owned by the members of the family of Raja Daryao Singh was also made on behalf of Respondent No. 1 on the 25th of October, 1945. The only ground on which we were asked to admit this document, which was not produced in the lower Court, in appeal was that it was not within the knowledge of Respondent No. 1 or his agents during the trial of the suit in the Court below. Such a plea has no force in connection with a document of this character which formed part of a public record. Admission of additional evidence in appeal is not the rule. On the other hand under Order 41 Rule 27 of the CPC parties to an appeal are not entitled to produce additional evidence, whether oral or documentary in the appellate Court, except in specified circumstances, We are clear that where a party has through his own negligence kept himself ignorant of a document, and wants to produce it in the appellate Court, he cannot claim the benefit of Order 41 Rule 27. We ac-accordingly reject the Respondents application for admission of the wajib-ul-arz of Bazpur Nat Kaura. 45. The position, therefore, may be summed up thus: There are five wajib-ul-araiz distated by persons who belonged to the same family as Raja Daryao Singh, Exs. A2, A135, 32, 35, and 38: the last three make no mention of any custom of adoption: Ex. We ac-accordingly reject the Respondents application for admission of the wajib-ul-arz of Bazpur Nat Kaura. 45. The position, therefore, may be summed up thus: There are five wajib-ul-araiz distated by persons who belonged to the same family as Raja Daryao Singh, Exs. A2, A135, 32, 35, and 38: the last three make no mention of any custom of adoption: Ex. A2 gives the family custom under which certain restrictions are placed on the right of adoption even on a male member of the family. He mast, if he wants to adopt a son, first select a boy from amongst his nearest collaterals. In case such a boy cannot be found he can adopt one from his family. But in no case can he adopt one who is not a Thakur of Sombansi caste. This is followed by a statement as regards widows: And the issueless widow of the Raja after the death of the Raju remains the owner of the estate as long as she lives And according to the family custom she has the power to adopt. 46. Ex. A135 makes a vary brief reference to the custom of adoption. It states: The childless wife from her husbands family, and the childless co-sharer from his family have got the power of adoption. 47. It will be seen that none of these wajib-ul-araiz says either expressly or by implication that a widow can adopt a son without tha permission of her husband. There is in the Circumstances of the case good reason for the view that mention of the widow's power to adopt was considered necessary only to make it clear that, though the custom restricts the power of the males, it does not take away the power of the widows. 48. In the absence of specific mention of the subject there could possibly be room for argument that the widow had no power to adopt at all. Accordingly it was made clear that the custom does not take away such power from the widow, but it mus be subject to the same restrictions as those imposed on the males. We are unable to agree with the learned trial Judge on the construction which rightly be placed upon these wajib-ul-araiz. Accordingly it was made clear that the custom does not take away such power from the widow, but it mus be subject to the same restrictions as those imposed on the males. We are unable to agree with the learned trial Judge on the construction which rightly be placed upon these wajib-ul-araiz. On the other hand we are clear that these wajib-ul-araiz do not lend any support to the custom pleaded by Harihar Bakhsh Singh that in the family of Raja Daryao Singh a sonless widow could adopt a son without the permission of her husband. 49. Apart from the contention that the custom pleaded found no support in the wajib-ul-araiz produced by Harhar Bakhsh Singh, it was contended that even assuming that the wajib-ul-arz of Sewaijpur (Ex. A2) was capable of such a construction, no weight could, having regard to the circumstances in which it was recorded, be attached to it as evidence of a family custom. These wajib-ul-araiz were prepared under Settlement Circular No. 20 of 1863. Sewaijpur was a taluqdari village. Succession in taluqas was governed either by the sanads granted to the taluqdars or the Oudh Estates Act I of 1869. There was, therefore, no necessity for recording the custom of succession with regard to such villages. Accordingly Circular No. 20 of 1863 provided that paragraph 3, which was meant to deal with the devolution of inheritance and custom of succession, should not be recorded in taluqdari villages. Entries relating to custom in wajib-ul-araiz are admissible in evidence u/s 35 of the Evidence Act which provides that an entry in any public record or other official book, register or record, stating the fact in issue or relevant fact, and made by a public servant in the discharge of his official duty or by any other person in performance of a duty specially enjoined by the law of the country in which such book, register or record is kept is itself a relevant fact. 50. It was contended that the entry relied on in the wajib-ul-arz cannot be said to have been made by the Settlement Officer in the discharge of his official duty and accordingly does not fulfill the requirements of Section 35, and could not be admitted in evidence. It was further contended that it was not the result of any inquiry made by the Settlement Officer. It was further contended that it was not the result of any inquiry made by the Settlement Officer. On the other hand it was simply a record of a statement made by a mukhtar of the Court of Wards which had assumed the superintendence of the estate of Raja Deep Singh on account of his majority. 51. It appears that the second summary Settlement of taluqa Sewaijpur was made with ivaja Daryao Singh. Ha died soon after leaving a widow Puran Kuar. Puran Kuer got a primogeniture sanad in respect of this taluqa (Ex. A3). A right of adoption was given to her by the sanad. But this right was wholly independent of the right enjoyed by a Hindu widow under her personal law, or under a family custom. The Rani died before 1870 leaving an adopted son Raja Deep Singh. The wajib-ul-arz of Sewaijpur was recorded in 1870 The verification statement Ex. A3 is dated the 12th December, 1870. The Ranis having died leaving a minor adopted son, the management of the estate was assumed by the Court of Wards and the wajib-ul-arz in question purports to have been dictated by a general agent of the Court of Wards. It was further pointed out that the mukhtar of the Court of Wards, who dictated this wajib-ul-arz, was a Mohammedan, Masihullah by name, who could hardly be expected to be acquainted with the family custom of Raja Daryao Singh. A suggestion was further made by the Appellants' Learned Counsel that not improbably the statement with regard to the alleged custom of adoption was made id the interest of Deep Singh in view of the construction we have put upon this wajib-ul-arz all these contentions lose much of their importance. We are, however, not prepared to exclude this wajib-ul-arz from consideration on the ground that the record of paragraph 3 relating to succession was unnecessary under Settlement Circular No. 20 of 1863 in taluqdari villages. It is true that it was not necessary for the Settlement Officer to record paragraph 3 in the wajib-ul-arz of Sewaijpur, as it was a taluqdari village. The record was nonetheless made by him in the discharge of his official duty may be under a misconception as to what his official duty was. It is true that it was not necessary for the Settlement Officer to record paragraph 3 in the wajib-ul-arz of Sewaijpur, as it was a taluqdari village. The record was nonetheless made by him in the discharge of his official duty may be under a misconception as to what his official duty was. We are of opinion that merely because a public servant acts under a misconception about his official duty this is not sufficient to take an entry made by such official out of the class referred to in Section 35. 52. The other points raised affect the weight to be attached to the entry and not to its admissibility. It was observed by a Bench of the Court of the Judicial Commissioner of Oudh in Mst. Parbati Kuar v. Chandra-pal Kuar (1903) 8 OC 94 (102) that upon a question of custom the wajib-ul-arz is generally more valuable as a record of the opinion of persons presumably acquainted with the custom than as an official record of the custom. This opinion expressed by a Bench, one of whose members, (Mr. Chamier, afterwards Sir Edward Chamier) had very extensive experience of litigation in Oudh, is entitled to great weight. Wajib-ul-araiz recording a family or tribal custom are admissible in evidence as held in Lekhraj Kuer v. Mahpal Singh (1880) 7 I A 63. But the weight to be attached to any such entry must vary according to the circumstances of each case. Here the wajib-ul-arz was dictated by a Mohammedan mukhtar of the Court of Wards relating to a custom supposed to prevail in the family of a Hindu Raja. There is nothing to show if this mukhtar was long connected with the Raja's family; nor do we know what his source of knowledge was. The statement made by him is inaccurate at least in one material particular. According to him Raja Deep Singh was adopted by Raja Daryao Singh. This was not so. Admittedly Deep Singh was adopted by Puran Kuer. Under the circumstances, even if this wajib-ul-arz could be construed so as to lend support to the custom pleaded by Harihar Bakhsh Singh, we would not be inclined to attach much weight to it. 53. According to him Raja Deep Singh was adopted by Raja Daryao Singh. This was not so. Admittedly Deep Singh was adopted by Puran Kuer. Under the circumstances, even if this wajib-ul-arz could be construed so as to lend support to the custom pleaded by Harihar Bakhsh Singh, we would not be inclined to attach much weight to it. 53. In addition to the two wajib-ul-araiz to which reference has been made reliance was placed on behalf of Harihar Bakhsh Singh in proof of the custom on two instances-the adoption of Raja Deep Singh by Puran Kuer and of Muslim Singh by Mst. Parbati, widow of Mardan Singh. Ttiere is no definite evidence to show that Deep Singh's adoption was made by Puran Kuer without the permission of her husband. The same remark applies to Mulaim Singh's adoption. We are not unmindful of the fact that Mulaim Singh, who was examined as a witness in this case as D.W. 18, stated that Parbati adopted him without the permission of her husband, and a similar suggestion was made by Dammar Singh, D.W. 2. But obviously Mulaim Singh could not have any personal knowledge of the fact whether his adoption was made with or without Mardan Singh's permission. Ha stated that he was told about it by his natural father Tilak Singh. This is not admissible in evidence u/s 32 of the Indian Evidence Act or under any other provision of that law. Dammar Singh, D.W. 2, was only a boy of 10 or 11 at the time of this adoption and it is difficult to place any reliance on his statement on this subject. In these circumstances neither of these two intstances can be helpful as evidence in support of the alleged custom. 54. It was further pointed out that in the long history of this family as recorded in wajib-ul-arz Ex. A2, which must he based on tradition, there is no instance of an adoption by a widow without the permission of her husband. 55. Eight witnesses were examined on behalf of Harihar Bakhsh Singh in support of the custom. They are D.W. 1 Gulab Singh, D.W. 2 Dammar Singh, D.W. 7 Kr. Shankar Bakhsh, D.W. 8 Kr. Suraj Bakhsh, D.W. 13 Raghuber Singh D.W. 16 Jagjiwan Singh, D.W. 17 Bachchu Singh and D.W. 13 Mulaim Singh. 55. Eight witnesses were examined on behalf of Harihar Bakhsh Singh in support of the custom. They are D.W. 1 Gulab Singh, D.W. 2 Dammar Singh, D.W. 7 Kr. Shankar Bakhsh, D.W. 8 Kr. Suraj Bakhsh, D.W. 13 Raghuber Singh D.W. 16 Jagjiwan Singh, D.W. 17 Bachchu Singh and D.W. 13 Mulaim Singh. We may state at once that the evidence of D.W. 2 Dammar Singh, D.W. 16 Jagjiwan Singh and D.W. 7 Kr. Shankar Bakhsh is not entitled to any weight. 56. Tha wajib-ul-araiz of the villages to which they belong, Amarta, Kanhari, and Khatauli, Exs. 32, 35, and 33 have been produced. They make no mention of any such custom. With regard to D.W. 7 it may further be mentioned that his father aged 70 years was alive when the evidence of this witness was recorded, but was not called. D.W. 13 Raghuber Singh is a tenant of Harihar Bakhsh Singh and naturally under his influence. According to him on the death of Raja Karan Singh he and his father both went to attend his obsequies. While there the Witness asked his father who was going to succeed to the estate and received the reply that whomsoever the Rani adopted would succeed. It was in that connection that his father told him about the custom. It is not clear how the question whether an adoption by Inder Kuer could be made with or without the permission of her husband cropped up. D.W. 8 Kr. Suraj Bakhsh Singh stated that he learat about the custom from his father nine or ten years ago; This was after the controversy had begun and his statement is on that ground inadmissible in evidence. Apart from this we are, after having read his cross-examination, not impressed with his evidence. D.W. 17 Bachchu Singh belongs to village Choranki Nahar. Ex. A135 is the wajib-ul-arz of that village. Bachchu Singh stated that he learnt of the custom from his father. His father attested the wajib-ul-arz, Ex. A135, and we have held that it mentions no such custon as the witness sought to support by his evidence. Lastly D.W. 1 Gulab Singh is the father of Harihar Bakhsh Singh. He is a most interested witness and his evidence on such a point naturally carries little weight. We have already made our observations about the evidence of D.W. 18 Mulaim Singh. 57. Lastly D.W. 1 Gulab Singh is the father of Harihar Bakhsh Singh. He is a most interested witness and his evidence on such a point naturally carries little weight. We have already made our observations about the evidence of D.W. 18 Mulaim Singh. 57. Having given the matter our careful consideration we are clear that the pustoon relied on by Harihar Bakhsh Singh, that in the family of Daryao Singh widows could adopt without the permission of their husbands, has not been established. 58. The other line of attack on the validity of the adoption of Harihar Bakhsh Singh was that Karan Singh having died leaving a widow Khem Kuar, Inder Kuar's powers to adopt a sou to her hushand came to an end and could not be revived by the death of Khem Kuer. Reliance in support of this proposition was placed on a long list of cases beginning with Mst. Bhoobum Moyee Delia v. Ram Kishore Acharaj Chowdhry (1865) 10 M I A 279. Special mention made of the observations of their Lordships of the Judicial Committee in Madana Mohana Deo v. Purshothma Deo (1918) 45 I A 136 (161) referring with approval to the decision of a Full Bench of the Bombay High Court in Ram Krishna Ramchandra v. Sham Rao Yashwant (1902) 86 Bom 526 and of the decision in Amarendra Mansingh v. Sanatan Singh (1933) 60 I A 242 where the Bombay case was examined without expression of dissent. According to the Appellants' contention the correct law was laid down by the Full Bench decision reported in ILR 26 Bom. 526 8 Chandavarka J. who delivered the judgment in that case laid down the rule as follows. Where a Hindu dies leaving a widow and a son, and that son dies leavings a natural born, or adopted son, or leaving no son, but bis own widow to continue the line by means of adoption, the power of the former widow is extinguished and can never afterwards be revived. 59. Where a Hindu dies leaving a widow and a son, and that son dies leavings a natural born, or adopted son, or leaving no son, but bis own widow to continue the line by means of adoption, the power of the former widow is extinguished and can never afterwards be revived. 59. Reference in support of this argument was made to a large number of cases of which the following are the more important: Pudma Coomari Debi v. The Court of Wards (1886) 8 IA 229: Thayammal v. Venkatarama Aiyan (1887) 14 I A 67 Amarendra Mansingh v. Sanatan Singh (Supra): Krishnarav Trimbak Hasabnis v. Shankarraav Vinayak Hasabnis (1893) 17 Bom 164 Manikyamala Bose v. Nanda Kumar Bose (1906) 33 Cal 1306: Madana Mohana Deo v. Purshothama Deo7 Partapsing Shivsing v. Agarsingji Rai-singji (1919) 46 I A 97, and Vijaysingji Chhatrasingji v. Shivasangji Bhimsingji (1035) 62 I A 161. 60. It was urged in reply on behalf of Respondent No. 1 that all these cases were decided on the theory that if the estate of a Hindu vests in some one on his death, a subsequent adoption by his widow cannot have the effect of divesting it, as was laid down in 10 Moore's Indian Appeal, 279. That this theory no longer holds the field is clear from the decision in Amarendra Mansingh's case, where many of the previous cases were examined. This will appear from the following observations in that case: It necessarily follows, their Lordhips think, from this decision, (Partapsingh Shivsingh v. Agarsingji Raisingji 46 I.A. 79) that the vesting of the property on the death of the last holder in some one other than the adopting widow, be it either another co-parcener of the joint family, or an outsider claiming by reverter, or, either their Lordships would add, inheritance, cannot be In itself the test of the continuance or extinction of the power of adoption. If in Partapsingh's case the actual reverter of the property to the head of the family did not bring the power to an end, it would be impossible to hold in the present case that the passing by inheritance to a distant relaid on could have that effect any more than the passing by survivorship would in a joint family. 61. 61. It must be conceded that the question, what limits in point of time should be placed upon a Hindu widow's power to adopt, is not free from difficulty. It is interesting to watch the development of the law on this subject during the last 89 years. As observed in Mayne's Hindu Law, 10th edn., page 232 upon the difficult question of where the line should be drawn and upon what principle, there have been considerable fluctuation of opinion in the judgments of the Court in India as well as in those of the Judicial Com nit-tee. It was pointed out that the Hindu Law sets no limits to the exercise of a widow's power to adopt. It has, however long been recognised by Courts that there must be some limit to its exercise, or at alt events, some conditions in which it would be either contrary to the spirit of the Hindu doctrine to admit its continuance, or inequitable in the face of other rights to allow it to take effect. It is however, unnecessary for the purposes of the present appeal to review the numerous cases beginning from the judgment in Bhoobum Moyjee Debia's case, to the present day. Attention may, however, be drawn to the profound change in the effect of previous decisions brought about as a result of the pronouncement in Amarendra Mansing's case (Supra). That there has been profound modification of the effect of previous decisions by that case is clear from the observations of Sir George Rankin who delivered the judgment of the Privy Council in Anant Bhikappa Patil v. Shan-kar Ramchandra Patil (1943) 70 I A 232 at 236. It must be conceded that till the decision in Ama-rendra Mansingh's case was pronounced the dictum of Chandavarkar J. 26 in Bom. 526 which was approved of in 45 I.A. 156 was considered to lay down the correct law. It was taken as settled that the widow's power came to an end if her son died leaving his widow, and that once the powers was extinguished, it could never be revived. This apparently finds strong support in the observations of Viscount Haldane in Madana Mohana Deo's case (45 I.A. 156 at 161-2). It was taken as settled that the widow's power came to an end if her son died leaving his widow, and that once the powers was extinguished, it could never be revived. This apparently finds strong support in the observations of Viscount Haldane in Madana Mohana Deo's case (45 I.A. 156 at 161-2). But Sir George Lowndes has (in 60 1.A., 242 at 261) taken a different view of the pronouncement in 45 I.A. 136, as will appear from the following; They think that there is no foaudation for the contention that a mother's authority to adopt is extinguished by the mere fact that her son has attained ceremonial competence, and they are satisfied that Lord Haldane had no question of this in mind. 62. In our view the authority of the decision in so far as it lays down that the authority is extinguished, and can never afterwards be revived, considerably is shaken as a result of this observation. Whether in order to put an end to the widow's power to adopt it is essential that the son's widow should herself be clothed with the power of adoption was left open in Stauana Mohana Deo's case as also in Amarenara Mansingh's case. This is clear from the following passage occurring at page 257 of 60 I.A.: Whether in order to bring this principle into play it is essential that the ton's widow should her self be clothed with the power of adoption is left open and it is not necessary for their Lordships to consider this in the present case as Bibhudendra died unmarried.... 63. In the case of Vijaysingji Chhatra-singji v. Shivasangji Bhimsangi 5 the holder of an impartible estate in Bombay Presidency died in 1899 survived by a widow and a son. The son inherited the estate in 1899. But in 1915 he was. adopted into another family. In 1917 the widow made an adoption to her deceased husband. The High Court held that the adoption of 1917 was invalid on the ground that upon the adoption in 1915 the estate had become vested in the then heir. It was held by the Judicial Committee that the widow had power to make the adoption for the purpose of continuing the line of her deceased husband, although the estate was not vested in her. It was held by the Judicial Committee that the widow had power to make the adoption for the purpose of continuing the line of her deceased husband, although the estate was not vested in her. It may be mentioned that in this case, at the time of his adoption, the son (Chhatrasingji) was a married man of about 33 years of age. 64. The decisions above referred to establish the following propositions: (1) that the texts of Hindu Law do not place any limit on the power of adoption of Hindu widow in point of time nor as to the number of adoptions; (2) that a widow cannot adopt if she has a son and the son dies leaving a widow who can continue the line by making an adoption; (3) whether in this case the son's widow in order to take away the mother's power of adoption must herself be clothed with the power to adopt is still an open question; (4) that the interposition of a grandson, or the son's widow, brings the mother's power of adoption to an end, but the mere birth of a son does not do so; (5) that this is not based upon a question of vesting or divesting of property) (6) that the true reason must be that where the duty of providing for the continuance of the line for spiritual purposes which was upon the father, and was laid by him conditionally upon the mother; has been assumed by the son and by him passed on to a grandson or to the son's widow the mother's power is gone; and (7) that if the son die himself sonless and unmarried, the duty Will still be upon the mother, and the power in her which was necessarily suspended during the sons lifetime will ravive, 60 I A 242 at 265. 65. This leaves open the question whether the power which is suspended during the lifetime of an unmarried son will not revive if he marries and leaves a widow and the widow dies. According to the contention of the Appellants' Learned Counsel based upon the view taken in 26 Bom 526 the mere fact that a son marries and dies leaving a widow takes away the mother's power of adoption. According to the contention of the Appellants' Learned Counsel based upon the view taken in 26 Bom 526 the mere fact that a son marries and dies leaving a widow takes away the mother's power of adoption. If it is once conceded that the true reason for extinction of the mother's power lies not in any question of vesting or divessing of the state, but must be found in the existence of a provision for the satisfaction of the spiritual necessity of providing the continuance of the line, it is not clear how it is possible to support this contention. If the son's widow is not clothed with the power of adoption, or makes herself incapable by remarriage to carry out the duty laid upon her the provision for continuance of the line no longer subsists. The same would be the case if she dies without making an adoption. The spiritual necessity must, in such circumstances, remain unsatisfied. There appears on principle, therefore, no good ground for taking the view that the mother's power comes to an end merely because the son ties leaving a widow. It would obviously be illogical to adopt this view, and we would not do so unless there are overwhelming reasons for adopting such a course. We are not satisfied on a careful consideration of Amarendra Mansingh's case that such a result was intended by their Lordships. 66. Amarendra Mansingh's case was carefully examined by, a Bench of the Nagpur High Court in Bapuji Ramji Patel v. Gangaram Madharao Deshpande (Supra). That was a case where a Hindu died leaving behind him a widow and a son. The son died leaving behind him his widow who remarried. It was held that the power of the mother revived on the remarriage of her daughter-in-law. This decision was referred to with approval by Sir George Rankin who pronounced the judgment of the Judicial Committee in Anant Bhikappa Patil v. Shankar Ramchandra Patil AIR 1861 Nag. 116. It is true that the point which arose for consideration in 70 I. A. 232 was not the same as that in 1941 Nag 116; but if the Nagpur case had taken a view which was inconsistent with the decision in Amarendra Mansingh's case, it could not have been approved of by Sir George Rankin. We respectfully agree with the principle laid down in the Nagpur case. We respectfully agree with the principle laid down in the Nagpur case. If the remarriage of a son's widow revives the mother's power to adopt, we see no reason why the same principle should not apply to the case where the son's widow dies without making an adoption. 67. Having given the matter our best consideration we are of opinion that the second line of attack upon the validity of adoption must fail. But having found against the Respondent No. 1 on the question of custom, our decision on this point would not materially affect the result of the case. 68. We will now consider the next point namely whether the Plaintiffs are the descendants of Zalim Singh and the next reversioners of Jangli Bakhsh. It was contended on behalf of the Plaintiffs, and the view found favour with the learned trial Judge, that in view of the previous litigation between Inder Kuer and Baldeo Bakhsh, under whom the Appellants claimed, the following questions were res judicata and could not be reagitated: In order to understand the fail significance of this plea it is necessary to state a (1) that Umrao Singh was the validly adopted son of Zalim Singh, (2) that Baldeo Bakhsh Singh was the legitimate son of Umrao Singh; and (3) that Baldeo Bikhsh Singh was the next reversioner of Jangli Bakhsh and entitled to succeed to Sakran estate on the death of Inder Kuer. few facts, to which reference has already been made in the opening portion of this judgment. Jangli Bakhsh Singh, father of Inder Kuer, was the owner of Sakran estate. He died in 1862 and was succeeded by his widow Ambar Kuer. She died in 1863 leaving a minor daughter Inder Kuer. It appears that half of the Sakran estate was recorded in the village papers in the name of Jangli Bakhsh Singh's brother's widow, Agar Kuer, and half in the name of Inder Kuer, minor. What is called the first regular settlement came about the year 1867. All the claimants to Sakran estate put forward their claims before the Settlement Officer. They were Agar Kuer widow of Sheo Singh, Jitan Kuer widow of Shankar Bakhsh, who had predeceased his father Sheo Singh, Inder Kuer, Baldeo Baksh Singh who claimed the whole estate against Agar Kuer and Inder Kuer Madho Singh and Debi Singh and Beni Singh, alleged adopted sons of Sheo Singh. They were Agar Kuer widow of Sheo Singh, Jitan Kuer widow of Shankar Bakhsh, who had predeceased his father Sheo Singh, Inder Kuer, Baldeo Baksh Singh who claimed the whole estate against Agar Kuer and Inder Kuer Madho Singh and Debi Singh and Beni Singh, alleged adopted sons of Sheo Singh. Debi Singh claimed to have been adopted by Sheo Singh and Beni Singh alleged that he was adopted by Agar Kuer. These seven claims were finally decided in 1868-9. Inder Kuer was held entitled to a life interest in Sakran estate, and Agar Kuer was held entitled to a right of maintenance. Whether Baldeo Bakhsh Singh was the next presumptive reversioner of Jangli Bakhsh was not specifically determined. The claims of all the male claimants and of Jitan Kuer were dismissed. Inder Kuer was held entitled to a life interest in the estate without any power of transfer by gift, sale or will. Inder Kuer who had married Deep Singh, taluqdar of Sweaijpur in 1872, remained in possession of the estate whereof the management was assumed by the Court of Wards. Deep Singh died in 1891 leaving a son Karan Singh. Karan Singh married Khem Kuer and died in 1909 leaving her as widow. On the death of Karan Singh there arose disputes between Inder Kuer and Khem Kuer. These disputes were mutually settled by an agreement between the two widows. They executed a deed on the 7th of May, 1909. Under its terms Khem Kuer was declared owner of Sakran estate and Inder Kuer was allotted maintenance during her lifetime. She was, however, allowed to remain in possession of Sakran estate in lieu of maintenance. Baldeo Baksh thereupon instituted a suit in 1909 in the Court of the Subordinate Judge, biswan, for a declaration that the deed of the 7th of May, 1909, was invalid, fictitious and void as against him and that Mst. Inder Kuer had only a life interest in the estate. Both Inder Kuer and Khem Kuer wire impleaded as Defendants in this suit. 69. The two ladies filed saparate written statements. Inder Kuer had only a life interest in the estate. Both Inder Kuer and Khem Kuer wire impleaded as Defendants in this suit. 69. The two ladies filed saparate written statements. Inder Kuer repudiated the deed of the 7th of May, 1909, and contended that inasmuch as she had inherited the estate by a testamentary disposition from her mother Ambar Kuer, who in her turn had inherited it by a testamentary disposition from her husband Jangli Bakhsh, she was the owner of full proprietary rights in the ilaqa. It was further contended on her behalf that she had acquired a full proprietary title to the estate, by adverse possession. This last plea was based on the allegation that daughters were excluded from inheritance in the family of Jangli Bakhsh Singh, and her possession was that of a trespasser. She further pleaded that Jangli Bakhsh had left a posthumous son in whom the estate vested on Jangli Bakhsh's death, and as she could not be an heir to her brother, her possession was on that ground also that of a trespasser. As regards Baldeo Bakhsh her defence was that Umrao Singh was a Brahman who could not have been legally adopted by Zalim Singh and was not in fact so adopted. Baldeo Bakhsh was also alleged to be a Bania. 70. Rani Khem Kuer also took these pleas as regards Umrao Singh and Baldeo Bakhsh. She relied on the deed of the 5th of May, 1909, which she contended Baldeo Bakhsh Singh had no right to get cancelled. Two other pleas were urged on her behalf, That Karan Singh had acquired a title by adverse possession to Sakran estate, and 2, that in case it be held that he (Karan Singh) entered into possession of the ilaqa through his mother, the latter relinquished her life estate and Karan Singh obtained a permanent right therein. 71. This suit was dismissed by Mr. Badhwar, Subordinate Judge of Biswan. He held that Umrao Singh was a Brahman; that Baldeo Bakhsh was not the legitimate son of Umrao Singh and that Inder Kuer succeeded Ambar Kuer by virtue of the latter's will as malik. As regards the previous decision in the Settlement Court which it was pleaded operated as res-judicata, he did not record any definite finding. He held that Umrao Singh was a Brahman; that Baldeo Bakhsh was not the legitimate son of Umrao Singh and that Inder Kuer succeeded Ambar Kuer by virtue of the latter's will as malik. As regards the previous decision in the Settlement Court which it was pleaded operated as res-judicata, he did not record any definite finding. He dismissed the suit as a result of the finding arrived at by him on other questions, There was an appeal against this decision the Court of the Judical Com-missioner of Oudh by Baldeo Bakhsh Singh. Khem Kuer died during the pendency of the appeal, and the appeal was there after continued against Inder Kuer alone li was allowed. The Judicial Commissioners" held that the decision of the settlement Court Operated as res-judicata and that Rani Inder Kuer could not deny that the Plaintiff (Baldeo Bakhsh) was the reversioner of Jangli Bakhsh, or that she had a larger state in ilaqa Sakran than was awarded to her by the Settlement Court, namely a life interest with no power of transfer by sale, gift or Will. Inder Kuer took the matter to the Privy Council but her appeal was dismissed. 72. It is pleaded on behalf of the Plaintiffs Appellants that the decisions in tha Settlement Court and in the suit brought by Baldeo Bakhsh Singh in 1909 operated as res-judicata, and Harihar Bakhsh Singh or other Respondents could not be allowed to reagitate the question of the validity of the adoption of Umrao Singh or the legitimacy of Baldeo Bakhsh in the present suit. The Respondents in reply urged that the Settlement Court did not specifically determine the validity of Umrao Singh's adoption or the legitimacy of Baldeo Bakhsh. That in a litigation between Madho Singh and Baldeo Bakhsh relating to the Rehar estate in 1871 it was admitted by Baldeo Bakhsh that his father Umrao Singh was a Brahman. There was nothing to displace this admission. With regard to the litigation which began in 1909 it was contended that any decision in that case could not operate as res judicata between rival reversioners who claimed Jangli Bakhsh Singh's estate on the death of Inder Kuer. Thus three questions arise are consideration: (1) Does the decision in the litigation started in 1909 operate as res judicata between Harihar Bakhsh Singh and the documents of Baldeo Bakhsh? Thus three questions arise are consideration: (1) Does the decision in the litigation started in 1909 operate as res judicata between Harihar Bakhsh Singh and the documents of Baldeo Bakhsh? (2) Does the decision in the Settlement Court preclude the Respondents from challenging the validity of Umrao Singh's alleged adoption by Zalim Singh and the legitimacy of Baldeo Bakhsh ? and (3) Is it proved on evidence that Umrao Singh was the validly adopted son of Zalim Singh and Baldeo Bakhsh Singh the legitimate son of Umrao Singh? 73. The first two are questions of law and the third a question of mixed law and fact. 74. As regards the first question we are of opinion that it should be answered in favour of Harihar Bakhsh Singh. It is well settled that a Hindu widow, or other limited owner during her life time represents the whole inheritance for certain purposes and a decision fairly and properly obtained in a suit by or against the widow as representing the estate is binding on the reversionary heirs. It was observed in Katama Natchier v. The Raja of Shivagunga (1863) 9 M I A 543, that That whole estate would for the time being be vested in her, absolutely for some purposes, though in some respects for a qualified interest ; and until her death it could not be ascertained who would be entitled to succeed... It is obvious that there would be greatest possible inconvenience in holding that the succeeding heirs were not bound by a decree fairly and properly obtained agtinst the widow. 75. But what was the character of the suit brought by Baldeo Bakhsh Singh in, 1909? Did Inder Kuer represent the estate of Jangli Bakhsh in that litigation? The suit was brought by Baldeo Bakhsh Singh who claimed to be the next presumptive reversioner of Jangli Bakhsh at the time for cancellation of a deed executed by the limited owner under the terms of which she acknowledged Khem Kuer to be the owner of the estate. In such a suit it can hardly be said that Inder Kuer represented the estate. On the other hand it was Baldeo Bakhsh who had brought the suit in order to protect tha estate or the" reversion. Neither Inder Kuer nor Khem Kuer could be proparly said to represent the estate of Jangli Bakhsh in that suit. In such a suit it can hardly be said that Inder Kuer represented the estate. On the other hand it was Baldeo Bakhsh who had brought the suit in order to protect tha estate or the" reversion. Neither Inder Kuer nor Khem Kuer could be proparly said to represent the estate of Jangli Bakhsh in that suit. As observed in Mayne's Hindu Law (10 edn) page 808: In order that the decree may have the effect of res judicata, the suit in which the decree was made should have been in respect of the estate represented by her (the widow). 76. We are clear that in the litigation of 1939 neither Inder Kuer nor Khem Kuer could be said to represent Jangli Bakhsh's estate. The decision in that litigation cannot, therefore, operate, as res judicata between the descendants of Baldeo Bakhsh and Harihar Bakhsh Singh who on either side claim to be entitled to Jangli Bakhsh's estate. They are in the position of rival reversioners. The decree in. that suit might operate as res judicata against parsons claiming through Inder Kuar but not against. Harihar Bakhsh Singh who claims as a reversioner-See Srimati Raj-lakshtni Dassi v. Bholanath Sen (1938) 66 I A 365, 77. The same, however, cannot be said of the litigation in the Settlement Court. In that litigation Mst. Inder Kuer claimed as the daughter Jangli Bakhsh and as such represented the estate. Any decree fairly and properly obtained in that litigation must be held to be binding on Jangli Bakhsh's reversioners. Baldeo Bakhsh claimed immediate possession of the taluqa against Inder Kuer and Agar Kuer in the Settlement Court. Inder Kuer as the daughter of Jangli Bakhsh was held entitled to retain possession during her life time. Any decision given in that suit must, therefore, operate as res judicata and bind any person who claims as the reversioner of Jangli Bakhsh. It may be pointed out that this question is no longer open to discussion in view of the decision of the Judicial Committee given in the suit brought by Baldeo Bakhsh Singh in 1909. A copy of the judgment of their Lordships is on the record and is marked Ex. 10. Their Lordships observed in the concluding portion of their judgment as follows: On the 18th April, 1868, Mr. Boys expressly affirmed the reversionary right of Baldeo in conjunction with Madho. Mr. A copy of the judgment of their Lordships is on the record and is marked Ex. 10. Their Lordships observed in the concluding portion of their judgment as follows: On the 18th April, 1868, Mr. Boys expressly affirmed the reversionary right of Baldeo in conjunction with Madho. Mr. Tucker on appeal dealt with the case on the basis that the Plaintiffs' and Madho's tight of reversion was clearly established and unimpugned. The reservation in the last part of his decree was fully warranted by the Hindu Law, for if Indar Kuer were to leave her surviving male children the agnates would have no right of succession. Neither in the Court of the Commissioner nor before the Financial Commissioner, to whom a second appeal was preferred from the decree of Mr. Tucker, does any objection appear to have been taken to the right of Baldeo as the circumstances then stood, to be one of the reversioners to Jangli Bakhsh: Upon these facts their Lordships are clearly of opinion that Inder Kuer is precluded from questioning in the present proceedings the Plaintiff's status. 78. It cannot be disputed that in the litigation in the Settlement Court Inder Kuer represented Jangli Bakhsh's estate as his daughter and heir. The matter, therefore, falls within the rule laid down in the Shivagunga case. We accordingly accept the finding of the learned Judge on this point. 79. But as the question whether on evidence Baldeo Bakhsh Singh, ancestor of the present Plaintiffs, was proved to be the legitimate heir of Zalim Singh was argued before us at length, and the chances are that the case might go before another tribunal in appeal, we will record our finding on that point and briefly state our reasons for the same. 80. The Defendants' case is that Umrao Singh was a Brahman who could not legally be adopted by Zalim Singh a Thakur. It was further contended that Baldeo Singh was a Bania and not the legitimate son of Umrao Singh. It was conceded by the Learned Counsel for Harihar Bakhsh Singh that it is impossible to find direct evidence on the question of Umaro Singh's adoption which must have taken place about a hundred years ago, for we know that Zalim Singh died in 1836. It was further conceded by him that under the circumstances every presumption in favour of the validity of the adoption should be made. It was further conceded by him that under the circumstances every presumption in favour of the validity of the adoption should be made. He pointed out, however, that in judging the question it should be kept in mind that the plea now raised by Harihar Bakhsh Singh is not a new plea. It was raised for the first time in 1867 by Agar Kuer. It was repeated by Madho Singh in the litigation between him and Baldeo Bakhsh as regards the Behar estate. It was in the course of that litigation that Baldeo Bakhsh Singh's counsel definitely admitted that Umrao Singh was a Brahman. The Respondent's counsel contended that in view of this admission it was incombent upon the Appellants in the present suit which was a suit in ejectment, to furnish some evidence to explain away that admission. The contention is not without force. During the litigation in the Settlement Court which was decided in 1868-9, Agar Kuer, one of the claimants raised this plea. One of the grounds on which she met the claim of Baldeo Bakhsh Singh was that Umrao Singh, father of Baldeo Bakhsh, was not the son of Zalim Singh. According to her he was a Brahman who could in no circumstances be validly adopted as a son by Zalim Singh who was a Thakur. A reference to the document on record shows that the Assistant Settlement Officer disposed of the seven claims that were preferred regarding succession to Sakran estate in this manner. He took up first the cases of the three women claimants, Agar Kuer, Inder Kuer and Jitan Kuer first. The plea that Umrao Singh was a Brahman and could not be adopted by a Thakur was, it will be remembered, raised only by Agar Kuer. As between these three ladies, Inder Kuer was held entitled to the estate subject to a maintenance charge in favour of Mst. Agar Kuer (see Ex. 16 dated 2nd of April, 1868). Having given this decision between the three women claimants Mr. Henry Boys, (who it appears was now the Settlement Officer) directed his attention to the cases of male claimants. The first paragraph of his judgment (Ex. 17 dated the 18th of April, 1868) is as follows: The rights inter se of Mst. 16 dated 2nd of April, 1868). Having given this decision between the three women claimants Mr. Henry Boys, (who it appears was now the Settlement Officer) directed his attention to the cases of male claimants. The first paragraph of his judgment (Ex. 17 dated the 18th of April, 1868) is as follows: The rights inter se of Mst. Agar Kunwar Inder Kunwar and Jitan Kunwar, formed the subject of enquiry in another case and their respective claims were decreed and dismissed on April 2, 1868. The present claims are filed by the male relatives of the family and it remains to be seen whether Inder Kunwar's right to hold the estate can stand against them.... 81. Then he discussed the claims and passed the following decree: The Court therefore decrees to Baldeo Bakhsh and Madho Singh, the proprietary rights in the villages of Sakran Ambaee 1/2, Peja-reepur, Jatpur Khoord, Ammo Kalan, Madugun, Nehighatho, Piloulee, Pipree, (Illegible) on account of building Hatwa, Bahadurpur, Katwa, Mardrapur Chilya, Yarpura, Dugaunwan, subject to the maintenance decreed to Agur Kunwar, and the maintenance until marriage and marriage expenses of the girl Indar Kunwar. The claims of Debi Singh and Beni Singh are dismissed. 82. This was his final decision by which all the seven claims were dispensed of, Agra Kuer who had raised the plea that Umrao Singh was a Brahman had lost against Inder Kuer (Ex. 16). Naturally, therefore, the plea raised by her about Umrao Singh did not come up for discussion when the second batch of cases of male relatives was taken up for consideration. The matter was taken in appeal before the Commissioner. Ex. 18 is a copy of the order passed by the Commissioner, Sitapur Division, on the 4th of September, 1868. By this decision the decree passed by Mr. Boys on the 18th of April, 1868, was set aside and the claims of Baldeo Bakhsh Singh and Madho Singh to Sakran estate during the life time of Inder, daughter of Jangli Bakhsh, were dismissed. The last paragraph of the order runs thus: this Court does not feel itself called upon to give a declaratory order with reference to the heirs in reversion. It is not desirable to do so as inder Kunwar will probably soon be married and may have children. Each party to pay its own costs in this appeal. The last paragraph of the order runs thus: this Court does not feel itself called upon to give a declaratory order with reference to the heirs in reversion. It is not desirable to do so as inder Kunwar will probably soon be married and may have children. Each party to pay its own costs in this appeal. Ultimately this remained the final decision as regards the seven claims in the Settlement Court. An examination of all these documents does not show what evidence, if any, was led in support of Agar Kuer's plea that Umrao Singh was a Brahman, nor do we know if any evidence was adduced on behalf of Baldeo Bakhsh Singh to prove the contrary. We may mention that in dealing with this part of the case we are treating the matter independently of the plea of res judicata. It appears that about the year 1870 a suit was instituted by Madho Singh, son of Barband Singh, against Baldeo Bakhsh Singh for possession of taluqa Behar an estate which comprised 29 villages. Madho Singh's claim for Rehar came up for hearing before the Assistant Settlement Officer, Sitapur, and on the 6th of June, 1870, he recorded the statement of Mr. Salik Ram, Counsel for Baldeo Bakhsh. That statement was as follows: I acknowledge the genelogical table, the four sons of Partap Bali Singh quarrelled in 1210, began to feed separately and in 1213 they divided off the estate into four parts as stated in the plaint, but Zalim Singh who was then qubuliatdar only gave separate possession to Gundurp Singh as he was the only one who could discharge his share of the common debts which Gend Singh and Barband Singh could not do, the two latter accepted separate villages as maintenance and gave up all claim to their shares first Murroor. Secondly, on the instruction of the village by the river Urriya, Zalim Singh in his life time adopted Umrao Singh who was a Brahman's child. Baldeo Bakhsh is a legitimate child of Umrao Singh. The adoption of Umrao Singh was recognised by all the brethren and they shared in the ceremonies of the adoption. Secondly, on the instruction of the village by the river Urriya, Zalim Singh in his life time adopted Umrao Singh who was a Brahman's child. Baldeo Bakhsh is a legitimate child of Umrao Singh. The adoption of Umrao Singh was recognised by all the brethren and they shared in the ceremonies of the adoption. The Plaintiff has nothing to do with the taluqa nor has he claim to any share and his claim is barred by time but however he got settled within 1264 but in 1265 he executed a deed of agreement and a razinamah by which he renounced all claim to the estate or to any share in it and agreed to take 600 kachcha bighas in addition to his village. The Plaintiff was never in possession within (?) taken and never gave qabuliat in 1254. 83. We have reproduced this extract from Ex. A23 at length in order to show that it was a considered statement made by Baldeo Bakhsh's Vakil (Salik Ram) as part of his pleading in relation to a matter which was one of the chief points that came up for consideration. The statement: The adoption of Umrao Singh was recognised by all the brethren and they shared in the ceremonies of adoption. 84. indicates that Mr. Salik Ram was alive to the objection that could be raised to the validity of an adoption like the one he had to support the adoption of a Brahman boy by a Thakur Zamindar, and accordingly sought to obtain support for it in the consent of "all the brethren". Possibly by this expression he meant the members of Umrao Singh's Biradri (community). Be that as it may, this admission by Baldeo Bakhsh's Counsel, unless explained away satisfactorily, is a very strong pieec of evidence in support of the Respondents' contention that the Plaintiffs cannot be the next reversioners of Jangli Bakhsh Singh. The matter does not, however, rest here. It appears that one Faqira Singh of Kesho-pur was a witness for Madho Singh in that litigation (Ex. A52). He stated (apparently from personal knowledge) about Umrao Singh that he was a Brahman boy brought up by Zalim Singh. The presiding Officer's note about this statement runs thus: N. B. No dispute about this. 85. He further made some statement about Baldeo Bakhsh Singh being a Bania-but that is inadmissible in evidence because it was hearsay. A52). He stated (apparently from personal knowledge) about Umrao Singh that he was a Brahman boy brought up by Zalim Singh. The presiding Officer's note about this statement runs thus: N. B. No dispute about this. 85. He further made some statement about Baldeo Bakhsh Singh being a Bania-but that is inadmissible in evidence because it was hearsay. His statement that he did not have any social relations with Baldeo Bakhsh may be admissible. 86. It is thus clear that Umrao Singh's Brahman parentage was a matter which was admitted and was not in dispute necessitating evidence to establish it. The statement made by Mr. Salik Ram gathers support from the circumstances disclosed by Baldeo Bakhsh Singh himself in his deposition as a witness recovered on the 14th of February, 1913 (Ex. A15). It appears that Gaur Thakurs-the class to which Zalim Singh belonged-did not have social relations with Baldeo Bakhsh. He stated Except Raghubar Singh here present and his nephews there is no living Gaur Thakur who has dined with me. 87. It was not disputed that Umrao Singh was an adopted child and not the natural born son of Zalim Singh. Baldeo Bakhsh was 32 years old when the suit for possession of Rehar estate was instituted against him by Madho Singh. When asked if Mr. Salik Ram was his Vakil and Hira Lal his mukhtar in that litigation he did not deny this-though he was reluctant to make any such admission. When questioned about the name of Umrao Singh's natural father and about the members of his family he took shelter behind a plea of ignorance. 88. It is thus clear that in 1870 it was admitted on all hands that Umrao Singh was a Brahman boy adopted by Zalim Singh. The adoption of a Brahman boy by a Thakur though wholly invalid according to our present day notions of Hindu Law, was possibly not considered in the same light by people one hundred years ago when knowledge of Sanskrit texts was limited to a few learned Brahmans, there were no regular Courts nor did there exist any system of law reports as we have. In this connection the following observations from Sarkar's Hindu Law of Adoption, page 357, Tagore Law Lectures, 1888, (2nd Edn.) are instructive: The rule laid down by Saunak is, that the boy to be adopted should belong to the same caste with the adopter. But be adds that if one be adopted from a different caste, he will not inherit the estate of the adopter, but he entitled to food and raiment only (Dattak Mimansa 3, 1-3). The adoption of a son from a different caste is not prohibited by Saunaka, nor by Sages who are the real law givers; and the commentators on general law, also, admit intermarriage between the different castes and lay down rules for dividing the estate of a map amongst his sons by wives of different tribes. 89. The same author however, in his work on Hindu Law remarks. The caste exciusiveness has become so rigid now, that an adoption of a son known to belong to a different caste is impossible at the present day (See 8th edn pige 192). 90. We find from the report of Narain Singh v. Mst. Shiam Kali Kunwar (1914) 17 O C 186 that even so late as 1912 a claim was set up in a Court of law by a Brahman boy who alleged that he was adopted by a Thakur zamindar. 91. Coming back, to the point under consideration we are clear that it lay upon the Plaintiffs to get rid of the admission made by Salik Ram which was not negatived by Baldeo Bakhsh Singh in his evidence recorded in 1913 (Ex. A 15). 92. The Learned Counsel for the Appellants was conscious of the difficulty his clients had to meet in that admission. He asked us to disregard the statement of Mr. Salik Ram as, he suggested, it was probably made to fix the other side to a plea which might have prove fatal to Madho Singh's success. This is the same argument as we find in the judgment of the Judicial Commissioners in disposing of the appeal in the declaratory suit instituted by Baldeo Bakhsh Singh against Inder Kuer and Khem Kuer (Ex. 9). This is the same argument as we find in the judgment of the Judicial Commissioners in disposing of the appeal in the declaratory suit instituted by Baldeo Bakhsh Singh against Inder Kuer and Khem Kuer (Ex. 9). We may point out that the question is not with what object the admission was made; the question on the other hand is whether It was true or was it only a false statement made for the purposes of a case. 93. It would be wrong to assume that Mr. Salik Ram made this admission of his own accord without instructions from his client, Baldeo Bakhsh Singh. If it was a deliberately false statement, Baldeo Bakhsh Singh had an opportunity when he was examined as a witness in 1913 to say so and to explain the circumstances in which it was made. He did not choose to do so. We are in the circumstances not prepared to assume that wrong statement made for the purposes of that case. It would be highly improper if parties were allowed lightly to get rid of their solemn statements deliberately made before Courts of law. 94. Our attention was invited to the statement of Agha Abdul Gani, Pleader for Madho Singh, (Ex. A23), who said that his client did not dispute the legality of Umrao Singh's adoption. On the contrary he acknowledged it. This cannot be of much help to the Appellants. It is no more than a statement that he did not want to raise a legal plea which was open to him in that case. It cannot negative the statement of fact made by Mr. salik Ram. 95. Having given the matter our most cereful consideration we are constrained to hold on the material on record that Umrao Singh was a Brahman boy who was adopted by Zalim Singh, a Thakur. 96. It was not contended before us that such an adoption could be considered valid under the Hindu Law. The result, therefore, is that if the question could be agitated in the present litigation we would hold that the Plaintiffs are not the next reversioners of Jangli Bakhsh Singh, But in view of the decision of their Lordships of the Judicial Committee in Rani Inder Kuer v. Thakur Baldeo Bakhsh Singh (Ex. The result, therefore, is that if the question could be agitated in the present litigation we would hold that the Plaintiffs are not the next reversioners of Jangli Bakhsh Singh, But in view of the decision of their Lordships of the Judicial Committee in Rani Inder Kuer v. Thakur Baldeo Bakhsh Singh (Ex. 10, Oudh Appeal No. 23 of 1915) the matter is res-judicata There is nothing to show however that Baldeo Bakhsh Singh was a Bania and not a legitimate child of Umrao Singh. 97. The next point we will consider is whether Bani Inder Kuer surrendered her life estate is Sakran in favour of her son Raja Karan Singh. It was argued by the Appellants' Counsel that the question was. res judicata between the parties, inasmuch, as it was not raised by Khem Kuer and Inder Kuer in the declaratory suit brought by Baldeo Baksh Singh against them in 1909-and if raised it was decided against them. The trial Judge accepted this contention. We are unable to agree with this view. In the litigation of 1909 it was Khem Kuar and not Inder Kuer who represented Karan Singh's estate. The decision in the trial Court was in her favour. It may be mentioned that the point was raised by Khem Kuer by paragraph 26 of her written statement (Ex. A14) but no specific issue was framed on this point. Baldeo Singh when he filed the appeal against that decision impleaded both Khem Kuer and 'Inder Kuer as Respondent; but Khem Kuer died before the appeal came up for hearing and after her death it was continued only against Inder Kuer. Inder Kuer had taken up a position which was altogether inconsistent with Khem Kuer's plea of surrender. She (Inder Kuar) repudiated the suggestion that she had surrendered her life estate. It is true that on Khem Kuer's death Karan Singh's mother Inder Kuer, was his heir - but in view of the position she had taken up in this litigation, it could not be expected that she would support Khem Kuer's plea that there was a surrender of her life estate by Inder Kuer in Karan Singh's favour. 98. We may mention that there is nothing on the record to show that on Khem Kuer's death any steps were taken for proper representation in the appeal of the interest which she represented. 98. We may mention that there is nothing on the record to show that on Khem Kuer's death any steps were taken for proper representation in the appeal of the interest which she represented. In these circumstances we are unable to hold that the decision was fairly and properly obtained against the female heir who represented the estate so as to bring the matter within the rule laid down in Shivagunga case (9 M.I.A., 543). 99. It will further be noted that if there was a surrender of her life estate by Inder Kuer in favour of Karan Singh the whole estate vested in him and he became its full owner. On his death the property would pass to his heirs and not to the reversioners of Jangli Bakhsh Singh. 100. But it is unnecessary in view of the conclusions arrived at by us to pursue this matter further. We are satisfied that the decision in the 1909 litigation does not operate as res judicata so as to preclude the present Respondents from agitating this point in the present appeal. 101. On the question of fact whether there was or not a surrender of her life estate by Inder Kuer in favour of Karan Singh the position stands thus. 102. It will be recalled that the Court of Wards had assumed superintendence of Sakran estate owned by Inder Kuer as well as of taluqa Sewaijpur which was owned by her husband Deep Singh. When he came of age, it appears that the entire property, his own taluqa as well as the estate belonging to his wife, was released in his favour. He continued to manage his wife's estate for her throughout his life. On his death in 1891 both the estates were mutated in the name of his son Raja Karan Singh. During the period of his possession Karan Singh alienated portion of Sakran estate, apparently for his own purposes, without any protest from his mother Rani Inder Kuer. On his death in 1909 when there was a dispute between Rani Inder Kuer and Karan Singh's widow Rani Khem Kuer, Inder Kuer acknowledged Khem Kuer's title to be the owner of both the estates, Sewaijpur as well as Sakran. Relying on these circumstances Harihar Bakhsh Singh's Counsel asked us to infer that Rani Inder Kuer had surrendered her life estate in favour of her son Karan Singh. Relying on these circumstances Harihar Bakhsh Singh's Counsel asked us to infer that Rani Inder Kuer had surrendered her life estate in favour of her son Karan Singh. We are unable to accede to this contention. It is one thing to say that Rani. Inder Kuer allowed her son a free hand so far as her own estate of Sakran was concerned but it is different to hold that she surrendered her life estate in his favour. So far as Raja Deep Singh was concerned it was not disputed that he was only managing his wife's estate for her. On his death as the property stood mutated in his name, the mutation was naturally effected in the name of his son. The fact that the estate actually belonged to Raja Deep Singh's wife Rani Inder Kuer was lost sight of. The only legitimate inference as regards the nature of Kaja Karan Singh's possession of Sakran is that it was of the same character as that of his father. It is true that he made a number of alienations of portions of his mother's estate, but that by itself does not lead to an inference that Rani Inder Kuer had surrendered her life estate in his favour. We do not know if Rani Inder Kuer was even aware of these alienations at the time they were made, nor can we find any adequate motive for Rani Inder Kuer to have surrendered her life estate in her son's favour. Of course she could not anticipate that he would predecease her and on her death the entire estate would naturally devolve upon him. In these circumstances it is difficult to believe that Rani Inder Kuer conceived the idea of surrendering her life estate, nor was it likely that such an idea should occur to Raja Karan Singh himself. We are on the material on record unable to hold that there was a surrender of her life estate by Rani Inder Kuer in favour of her son. 103. The last question which arises for consideration relates to the waqf created by Rani Inder Kuer by the deed dated the 22nd December, 1927, Ex. A125. By this deed she purported to dedicate the whole of village Sakran to the idol Sri Ram Chandraji installed in a temple in that village. 103. The last question which arises for consideration relates to the waqf created by Rani Inder Kuer by the deed dated the 22nd December, 1927, Ex. A125. By this deed she purported to dedicate the whole of village Sakran to the idol Sri Ram Chandraji installed in a temple in that village. This dedication, according to the recitals contained in the deed, was made in furtherance of an idea said to have been entertained by the Rani's father Thakur Jangli Bakhsh Singh and with the object of benefiting his soul. That a dedication of a small portion of the estate could be made by a limited owner for the benefit of the soul of the last male holder was not disputed. It was pointed out, however, by the Appellants' Learned Counsel that the dedication in this case was far in excess of what could properly devoted to such a purpose. He contended that it was not a bona fide act of the Rani but only a device to confer a benefit upon Gulab Singh, father of Harihar Bakhsh Singh, whom she subsequently adopted as a son. 104. Sakran village according to the recitals contained in the deed Ex. A125 was assessed to Rs. 1750 Government revenue and yielded an annual profit of Rs. 6000. The entire Sakran estate was liable to pay a Government revenue of Rs. 7710. Thus the dedicated property constituted, roughly speaking, a little less than one-fourth of the entire estate. It is well settled that a female Hindu heir can alienate a small, portion of the property for pious and charitable purposes she may have in view Referring to this class of alienations a Bench of the Madras High Court made the following observations in Vuppuluri Tatayya y. Garimila Ramakrishnamma (1911) 34 Mad. 288. We think we are warranted in holding that if the property sold or gifted bears a small proportion (which it is impossible to define more exactly) to estate inherited and the occasion of the disposition or expenditure is reasonable and proper according to the common notions of the Hindus, it is justifiable and cannot be impeached by the reversioner. 288. We think we are warranted in holding that if the property sold or gifted bears a small proportion (which it is impossible to define more exactly) to estate inherited and the occasion of the disposition or expenditure is reasonable and proper according to the common notions of the Hindus, it is justifiable and cannot be impeached by the reversioner. We are obliged to express ourselves somewhat guardedly because almost every gift according to Hindu notions is as such calculated to promote spiritual merit and the occasions for the performances of ceremonies calculated to bring spiritual reward are so innumerable that almost any expenditure not for a sinful object and any alienation by way of gift may be attempted to be justified as ministering to spiritual benefit. 105. These observations were quoted with approval by the Judicial Committee in the case of Sardar Singh v. Kunj Bihari Lal (1922) 49 I A 383 (392). Though no hard and fast rule can be laid down as to the fraction of the entire property which a Hindu widow may utilise for the benefit of the soul of the last male holder, we are clear that it must be a small portion of the entire estate. We cannot justifiably call the dedication in the present case as one of a small portion only. Accordingly we are unable to uphold the waqf in its entirety. We may at the same time make it clear that we are unable to agree with the Appellants' contention that it was not a bona fide act of Rani Inder Kuer. Taking all the circumstances of the case into consideration we are of opinion that the dedication should be upheld to the extent of one fourth part only. 106. The result, therefore, is that the appeal is allowed, the decree of the trial Court is set aside and the Plaintiffs' claim for possession of the suit property except with regard to one-fourth of the property dedicated by the dead Ex. A125 is decreed with costs in both the Courts. This decision will not affect the rights as between the Plaintiff's Appellants and persons who were arrayed as Defendants Nos. 2 to 9 in the lower Court. These will be governed by the terms of the compromise arrived at between them. A125 is decreed with costs in both the Courts. This decision will not affect the rights as between the Plaintiff's Appellants and persons who were arrayed as Defendants Nos. 2 to 9 in the lower Court. These will be governed by the terms of the compromise arrived at between them. As between the Plaintiffs Appellants and Defendants 10 to 14, each party shall bear its own costs of the litigations through out. The Plaintiffs Appellants are further held entitled to a decree for mesne profits from the date of the death of Rani Inder Kuer till delivery of possession. The amount of mesne profits will be determined in subsequent proceedings as was agreed to between the parties and directed by the trial Judge.