JUDGMENT : Mohapatra, J. - This appeal has been filed by Defendant No. 1 against the judgment dated 20-9-50 of Sri A. Misra, Subordinate Judge of Kenojhar confirming the decision of the trial Court. The Plaintiff's suit is one for declaration of his title on the basis that he is the adopted son of Gopi and for conformation of possession or in the alternative for recovery of possession. One Bauri Nath had four sons, Ainthu, Chaitan, Gopi and Fakir. After the death of Bauri, Ainthu separated from the other three brothers and enjoyed his four annas share separately. Thereafter Fakir (Defendant No. 1) separated and possessed his four annas interest separately since 1335. Chaitan and Gopi remained joint. Chaitan died leaving his two daughters Naba and Lata. Natabar first married Naba and after he death of Naba be also married Lata. The Plaintiff is the natural born son of Natabar and Lata. According to the Plaintiff, be was adopted by Gopi in the year 1945. Defendants 2 and 3 are the sons of Ainthu (deceased). Chaitan died in 1854 and Gopi died only a year after. The Defendants having got their names mutated in respect of the disputed properties threatened to dispossess the Plaintiff. So the present suit has been brought. 2. The defence is that in fact the Plaintiff as never adopted by Gopi who died issueless and unmarried and Chaitan died leaving no male-issue nor any widow. As all the four brothers, that is the sons of Bauri, were joint, the interests of Chaitan and Gopi have passed unto Defendants 1, 2 and 3 by way of survivorship. 3. The two questions that require determination in the present case are whether the Plaintiff was duly adopted by Gopi, and, secondly, if really Ainthu Fakir separated, and Chaitan and Gopi remained joint. 4. On the question of adoption, on a thorough examination of oral and documentary evidence adduced on behalf of both parties and taking into consideration a few circumstances the learned lower appellate Court has held, in confirming the finding of the trial Court, that in, fact the Plaintiff was duly adopted by Gopi. Three witnesses were examined on behalf of the Plaintiff to prove actual giving and taking ceremony. P.W. 2 is the astrologer who prepared the horoscope of the child. Three witnesses were examined on behalf of the Plaintiff to prove actual giving and taking ceremony. P.W. 2 is the astrologer who prepared the horoscope of the child. P.W. 4 is also another witness characterised as independent by the Courts below to prove giving and taking. P.W. 3 is the natural father of the Plaintiff. The case of the Plaintiff is' that the actual giving and taking took place on the 21st day after the birth of the child, that is, the Plaintiff, The Courts below have accepted their evidence as reliable. They have strengthened their judgment by relying upon a very important piece of document (Ext. 1), the registered deed of adoption executed by deceased Gopi on 5-6-47. P.W. 1 who is the identifier of Gopi before the registering Officer has proved the document and has also signed the document as identifier, He has stated that Gopi executed the document in a sober state of health and mind at the time and executed it after the contents were read over and explained to him. Indeed, Gopi was blind at the time of the execution of the document. But the Courts below have found the document to be genuine and that Gopi executed it after he was folly aware of the content thereof. The factum of adoption therefore having been concurrently found the true by the Courts below on an elaborate, discussion of both oral and documentary evidence, there is no point of law on which the finding can be challenged. 5. On the second question, as to whether Ainthu Bond. Fakir separated leaving Chaitan and Gopi to continue their joint family, both the Courts below have concurrently found in favour of Plaintiff's allegation. All the witnesses examined on behalf of the Plaintiff have deposed in support of the aforesaid allegation of the Plaintiff and the Courts below have accepted their evidence in preference to the oral evidence adduced on behalf of the Defendants. The Courts below have also relied upon Exts. 4, (a) and 7 showing that Chaitan was having independent transactions in support of their finding. Ext. 5 is a rent-receipt showing that Natabar had paid rent for the lands which were in possession of Chaitan and Gopi. The Courts below have particularly relied upon another piece of document (Ext. 10) as being very material. 4, (a) and 7 showing that Chaitan was having independent transactions in support of their finding. Ext. 5 is a rent-receipt showing that Natabar had paid rent for the lands which were in possession of Chaitan and Gopi. The Courts below have particularly relied upon another piece of document (Ext. 10) as being very material. This is a certified copy of deposition of Gopi in the previous mutation of case filed by Lata where these Defendants and Gopi were parties. He had stated there that they were separate for the last 20 year and that he himself and Chaitan were joint and since the death of Chaitan the properties belonging to himself and Chaitan were in possession of their son-in-law Natabar. 6. Mr. Rao, appearing on behalf of the Defendant-Appellant, contends that the finding regarding separation has been vitiated in law as being hazed upon an inadmissible piece of document (Ext.10) which has been particularly characterised by the lower appellate Court as very material. Mr. Rao's contention is that the conditions of the provisions of Section 82 of the Evidence Act have not been satisfied, and, as such, the document is not admissible even though Gopi is dead. But in our view, the document is admissible under the provisions of Section 33 of the Act as it is the apposition of a witness in a previous case where all the Defendants were also parties. The previous proceeding was started at the instance of Lata and Gopi who will representing the interest of the present Plaintiff was one of the opposite parties. The person Defendants 1, 2 and 3 were also arrayed as opposite parties. Gopi having died, the other conditions under the section having been fulfilled, the document cannot be taken to be inadmissible e simply because Gopi, and the present Defendants were not arrayed as parties opposed to each other. In our opinion, the conditions of Section 33 will be deemed to have been fulfilled when all the present parties were, also parties in the previous case and farther the selfsame question of witness and separation was required to be determined in the previous case where the deposition wag taken and the witness was also cross-examined. In our view, therefore, the finding on the point of separation of the Courts below is correct. 7. Mr. In our view, therefore, the finding on the point of separation of the Courts below is correct. 7. Mr. Rao, however has taken up a point of law on the question of adoption that as Gopi was blind at the time, the adoption was invalid. Indeed, it was one of the allegations made by the Defendants that Gopi was born blind which was controverted by the Plaintiffs side to the effect that in fact Gopi became blind on account of small pox after his 16th year of age. The controversy has been settled at rest by the finding of the Courts below that Gopi was not born blind but became blind subsequently when he was of tender age. Mr. Rao does not challenge this finding but contends that even a subsequent disqualification of blindness will disentitle Gopi to take any boy in adoption. The question, therefore, has arises for determination is whether a man afflicted with blindness subsequent to his birth can adopt. That again depends upon the question whether blindness, even though not congenital, is a disqualification for inheritance. Before referring to the three important decisions on the subject, we should place a few texts on the question. Manu, the Chief of the Rishis, with very high authority, in Chap. IX, pl. 201 of Sir W. Jone's Translation by Haughten says: Eunuchs, and outcasts, persons born blind or deaf, mad man, idiots, the dumb, and such as have lost the use of a limb, are excluded from a share of the heritage. Jagannath as translated by celebrated Colebrooks, gives the following texts of Yajnyavalkya, another of the Rishis of great authority: An outcast and his son, an eunuch, one lame, a mad man, an idiot, one born blind, and he who is afflicted by an incurable disease, must be maintained without any allotment of shares Vachaspati Misra, in the Vivad Chintamani as translated by Prosonno Coomar Togore, gives the text exactly in the same language. It is significant to mark that in these texts 'blind' is always qualified by the term 'born'. In Chap. II, Sloka X pl. 3, Vigneshvara quotes without a word of disapprobation of dissent the text of Manu, already mentioned. So also Nilakantka in Mayukha, Chap. IV, Sloka XI, reproduces the text of Manu without any contradiction or qualification so far as blindness is concerned. 8. In Chap. II, Sloka X pl. 3, Vigneshvara quotes without a word of disapprobation of dissent the text of Manu, already mentioned. So also Nilakantka in Mayukha, Chap. IV, Sloka XI, reproduces the text of Manu without any contradiction or qualification so far as blindness is concerned. 8. The matter came for the first time before their Lordships of the Privy Council in the case of Gunjeshwar v. Durgaprasad XLIV I.A. 229. The question that came directly before their Lordships was "Is a man who is a member of a joint Hindu family, which is governed, by the law of Mitakshara, and who becomes permanently blind after he is born, Excluded by Hindu law from sharing in the family property by reason of a permanent and incurable blindness which was not congenital?'. Their Lordships quoted with approval a passage from Rajkumar Sarvadhikari, in his Hindu Law of Inheritance at p. 956, which runs as follows: Blindness, to cause extension from inheritance, must be congenital. Mere loss of sight which has supervened after birth is not a ground of disqualification. Incurable blindness, if not congenital, is not such an affliction, as, under the Hindu Law, excludes a person from inheritance. After the quotation, their Lordships observed: "The above is, Their Lordships hold, the true rule". In our opinion, this decision of their Lordships has settled the matter at rest. Before this case of the Privy Council, there were two cases of Indian High Courts, the decisions of which were referred to and approved by their Lordships. The first is Mohesh v. Chunder 14 B.L.R. 273 of the Calcutta High Court, and the second is Murarji v. Pravatibai ILR 1 Bom. 177 The leading judgment on the question of law in the Bombay case of Westropp, C.J. is elaborate thorough and very learned discussion of all the texts on the subject. Their Lordships of the Privy Council without repeating the elaborate discussion of Westropp, C.J. have simply agreed with the view. 9. Mr. Rao, however, has relied upon a decision of the Madras High Court reported in Muthusami v. Meenammal ILR 43 Mad. Their Lordships of the Privy Council without repeating the elaborate discussion of Westropp, C.J. have simply agreed with the view. 9. Mr. Rao, however, has relied upon a decision of the Madras High Court reported in Muthusami v. Meenammal ILR 43 Mad. 464 in submitting his proposition that the right of a member of a Hindu joint family to share in ancestral property comes into existence all birth, and is not lost but only in abeyance by reason of a disqualification and it subsists an through although it is incapable of enforcement at the time of partition, if the disqualification then exists. This was a case of insanity which was not congenital. Mr. Rao contends that even if a disqualification comes all a subsequent stage, the person is to be deemed as a disqualified heir during the time that disqualification exists. In our opinion, this case has absolutely no bearing upon the question before us, because it was a use of insanity which was found after a thorough discussion in the judgment of Seshagiri Ayyar, J. that it need not be congenital to serve as a ground of disqualification for inheritance under Hindu Law. Furthermore, their, Lordships also propound the proposition in their decision that if on the death of all other members the disqualified member becomes the sole surviving member of the family, he takes the whole property by survivorship; thus finding that such a disqualification does not disentitle the disqualified manta take by way of survivorship. As in the present case Gopi will be getting the properties by way of survivorship after the death of Chaitart, being,the sale survivor between the two brothers who, as we have found, remained joint, and further that the adoption took place after the death of Chaitan when the entire property had vested in Gopi as the sale survivor. 10. Mr. Rao has further relied upon a decision of the Patna High Court, reported in Mst. Dilraj v. Rikheswar. There also if was a case of supervening insanity and their Lordships laid down the proposition that where therefore the disqualification supervenes later and the disqualified person is the sale survivor, he takes the whole estate by survivorship. Our remark in respect of the Madras decision are equally Applicable to this Patna decision. Dilraj v. Rikheswar. There also if was a case of supervening insanity and their Lordships laid down the proposition that where therefore the disqualification supervenes later and the disqualified person is the sale survivor, he takes the whole estate by survivorship. Our remark in respect of the Madras decision are equally Applicable to this Patna decision. We will make it clear that our above dissuasions apply to the position, of law as it was existing prior to the coming into force of the Hindu Inheritance (Removal of Disabilities) Act; as the case is coming from Keonjhar area where the Act was not in force. 11. In conclusion, the appeal fails and is dismissed with costs. Panigrahi, C.J. 12. I agree. Final Result : Dismissed