JUDGMENT : Panigrahi, C.J. - This is an appeal against the reversing judgment of the learned Subordinate Judge, Berhampur, in a suit for a declaration that the adoption of the first Defendant by the second Defendant is not true. The Plaintiff's brother, the late Brundaban, was adopted by his maternal uncle, Dibakar Patra, when he was one year old. By a registered will dated the 1st September 1908, Dibakar acknowledged the adoption of Brundaban, his sister's son, and made certain depositions of his properties in favour of his adopted son, his wife and daughter. Subsequently, by another will dated 6th. September 1910, Dibakar bequeathed the properties to Brundaban as person designata as doubts were entertained regarding the validity of the adoption of a sister's son. On the same date he executed a power of attorney in favour of the Plaintiff, to manage the properties of Brundaban during his minority. The second Defendant is the widow of Brundaban and she had adopted the 1st Defendant under the authority of her husband. The Plaintiff, who is the natural brother of Brundaban, wants a declaration that the alleged adoption of the first Defendant is not true and valid. Incidentally the question of the validity of the adoption of Brundaban to his maternal uncle, Dibakar Patra, has been raised, and the parties joined issue on the question whether the adoption of a sister's son is valid according to the customary law prevailing among the Oriyas of Ganjam. If that is found in favour of the Defendants it is clear that the Plaintiff has no right to question the factum or the validity of the adoption of the first Defendant by the second. The Courts below have come to different conclusions on the point, the trial court holding in favour of the Defendants on all the issues and the lower appellate court holding the converse view. The question for decision therefore, its whether the strict rule of Hindu Law prohibiting adoption of a boy whose mother, the adopter, could not marry in her virgin state, has given place to the customary law sanctioning such adoption among the Oriyas of Ganjam. 2. The two documents executed by the adopter would lend considerable assistance in the ascertainment of this fact. The first one is the will, Ext. 1 of the year 1908. 2. The two documents executed by the adopter would lend considerable assistance in the ascertainment of this fact. The first one is the will, Ext. 1 of the year 1908. It says that the adoptee had been brought up by the testator from his infancy and that he was executing the will so that future disputes may not arise regarding the inheritance of his property. In the second will, Ext. 1(a) of the year 1910, the recital is as follows - "Among the Oriya Brahmins of Ganjam district there has been an immemorial custom, authorising the adoption of a sister's son and a daughter's son, and as I knew this custom- myself I adopted my nephew, Brundaban, son of the late Agadu Patro about 13 years ago. I have performed the Dutta Homa and I have made dispositions of my property by a will dated 1st September 1908. But Pundits and Pleaders versed in Hindu law tell me that the adoption of a sister's son will not be valid and that the immemorial custom prevailing among the Oriya Brahmins has not received judicial recognition. When I heard this I became apprehensive that there may be litigation between the adopted son and my Gnyatis and that the properties would be wasted. I am therefore executing a fresh will". On the same day he appointed the Plaintiff as his agent to manage the properties. Brundaban was in enjoyment of the properties as owner till his death. Ext. B is a mortgage of the year 1916, executed by the late Brundaban, in respect of the properties of his adoptive father. 3. Apart from these documents there is oral evidence in support of the alleged custom. P.W. 1 himself did not deny that there was such a custom and his answer in cross-examination to a question specifically pet to him was evasive. He said "I have no knowledge if in our parts there is a custom allowing adoption of a daughter's son and that of a sister's son". There was no other evidence on the Plaintiff's side. But the Defendants examined some witnesses and produced some documents to prove the existence of a custom. D. W. 1 said that there was a custom in the locality allowing the adoption of a sister's son and gave certain instances. There was no other evidence on the Plaintiff's side. But the Defendants examined some witnesses and produced some documents to prove the existence of a custom. D. W. 1 said that there was a custom in the locality allowing the adoption of a sister's son and gave certain instances. He said that Binayak Subudhi of his village had adopted his sister's son, Chakrapani who is in enjoyment of his (Binayak's) properties, and he produced Ext. C a registered will dated 8th June of 1900 executed by Binayak in favour of his sister's son acknowledging his adoption. This document recites that the adoption took place in the presence of his relations according to the custom of the caste. Baikolli Acharaya had similarly adopted his sister's son. The witness also give yet another instance of Krupansindhu Panda of Padmapur and Bhima Padhi of Lokenathpur season. There was no cross-examination on this point though the witness was asked about the custom of adopting a brother's son also and the witness admitted that there was such a custom. D. W. 2 was adopted by his mother's brother Radhakrushna Padhi an is in possession of his properties as his adopted son. This witness and the mother of Defendant No. 2 are sisters. This fact, far from affecting the credibility of the witness lends weight to the truth of the statement he made. D. W. 4 is the grandson of Dibakar and he speaks of the adoption of Brundaban by Dibakar. He is the family priest of Defendant No. 2 and speaks about the adoption and Upanayanam ceremonies of Defendant No. 1. D. W. 5 is the group karnam and he says that he knew Brundaban who was the adopted son of Dibakar. D. W. 6 says that there was a custom in their caste allowing the adoption of a sister's son and a daughter's son, and gives a few instances from a few villages. There seems to be no reason why the evidence of these witnesses should of discarded specially when there is no evidence to the contrary on the Plaintiff's side and when there was no specific denial of the custom by the Plaintiff in his evidence before the Court. 4. The district of Ganjam formed a part of the Madras Presidency for centuries before it became a part of what is now Orissa State. 4. The district of Ganjam formed a part of the Madras Presidency for centuries before it became a part of what is now Orissa State. During the course of this long period the Oriyas of Ganjam, unconsciously adopted certain customs prevailing in the South as the entire population, irrespective of the language they spoke was governed by the Dravidian school of Mitakshara law. The rule regarding consent of a Sapinda to an adoption, in the absence of the husband's authority has been adopted by the Oriyas of Ganjam and this has never been disputed. The adoption of daughter's sons and sister's sons is a notorious fact which has seldom been challenged by the community though, occasionally, the point is raised in the Courts. There is no social ostracism practised against the family of either the adopter or the adopted. Even in the State of Madras the Courts had, for a long time, refused to recognise the existence of such a custom-see the case reported in ILR 1 Mad 420. That was a case of an Andhra Brahmin of Ganjam. In Gopalayyan v. Raghupathiayyan 7. Mad. H.C.R. 250 (F.B.) the Full Bench remitted the case to the Civil Judge for a finding whether the adoption by a Brahmin of his sister's son is valid, and the learned Civil Judge returned a finding that the custom had been shown to be uniform and uninterrupted. It was held by the civil judge. "That the existence of the custom goes back as far as 134 years, and that the publicity of the acts, the general acquiescence of the people in those acts and the opinions of those among the peoples who are acquainted with the Shastras that such adoptions are valid, all go distinctly to show a conviction among the people that they were acting in accordance with law". The learned Judges who ultimately heard the appeal upheld the adoption on the ground of estoppel while observing that the acquiescence of all the members of the family in the validity of the sonship asserted was itself a circumstance in favour of the adoption, though according to the strict Shastraic law it was invalid. 5. In Vaidinada v. Appu ILR 9 Mad. 44 (F. B.) a Full Bench of the Madras High Court of which the late Mr. 5. In Vaidinada v. Appu ILR 9 Mad. 44 (F. B.) a Full Bench of the Madras High Court of which the late Mr. Justice Muthuswamy Iyer was a member, held that in Southern India the custom which exists among Brahmins of adopting a sister's or daughter's son is valid. Their Lordships referred to Strange's Hindu Law, Vol. II Page 100 in which in the year 1806 it was said "In practice the adoption of a sister's son by persons of all castes is not uncommon". In an unreported case on the original side of that High Court, of the year 1859, Inguva Brahmani v. Venkatalakshmi Ammal (1859) unreported Case, the adoption by a Brahmin of his sister's son was upheld as valid. Their Lordships however relied on Vidyanatha Dikshtitar's Commentary on the text of Sounaka. In the current translations of Dattaka Mimamsa and Dattaka Chandrika the text is as follows "But a daughter's son and a sister's son are affiliated by Sudras". But the text as given by Vaidyanatha Dikshitas is as follows 'Of all' or as to all tribes (or classes) from their own classes only, daughter's son or sister's son as for Sudras in time of distress only. After discussing the reason for the divergence. Their Lordships say "We cannot but conclude that the text was intentionally given by the Commentator in the shape in which we find it, if indeed the whole of the concluding sentence as given in the other authorities was not also intentionally omitted...." The practice of making an appointed daughter whose son, if she had one, became the son of the father making the appointed daughter was a made of affiliation prevalent from the earliest time. The theory as to the prohibition of an adoption of a son born of a woman whom the adoptive father could not legally have married, arose from a commentary on a passage in the Smriti of Manu or Sounaka to the effect that the adopted son should have, or should be "the reflection of a son". Other similar restrictions probably developed until it came to be believed that the adopted son should be an imitation of a real son. Other similar restrictions probably developed until it came to be believed that the adopted son should be an imitation of a real son. Their Lordships observed that this was merely a record of the existing usage at the time the commentary was written and the practice of creating a daughter's son by appointment was only a difference in form and not of principle. The Samskara Kausthubha and the Nirnaya Sindhu, however construed the direction liberally and approved an adoption of a daughter's or sister's son. In west and Buhler's Digest of Hindu Law, Vol. II, page 384 there is mention of the prevalence of such a custom in Bombay j and the departure from accepted authorities and the emergence of customs in derogation of such authorities must be traced to historical reasons. The Full Bench of the Madras High Court, as has already been observed, upheld the adoption of a sister's son and ever since that decision that has been the law in the State of Madras. 6. In Viswa Sundara v. Somasundaram ILR 43 Mad. 876 a Case from the Andhra area a large number of witnesses were examined including 28 from Ganjam, of whom 22 were Oriya Brahmins of them, the late Dasarathy Padhi, a well-known authority on Hindu Shastras, stated that the law relating to marriage and adoption was common to the Oriya Brahmins and Andhra Brahmins of Ganjam Evidence such as this showing the exercise of a right in accordance with an alleged custom as far back as living memory can go, raises a presumption as to the immemorial existence of the custom. Their Lordships observed that the Commentary of Vaidynath Dikshitar was regarded as authoritative in another Ganjam case Brundaban v. Radhamohan. ILR 12 Mad. 72 and there was no reason why that authority should not be accepted as binding in the distinct of Ganjam in recognition of the alleged custom. They further observed "As regards the Oriya instances before us there is nothing of a distinction between the custom they support and that of the Telegu country." 7. It is thus clear that the custom of adoption of sister's or daughters's son has received judical recognition over such a length of time that it would be impossible to ignore its existence on the ground of paucity of evidence in a particular case. It is thus clear that the custom of adoption of sister's or daughters's son has received judical recognition over such a length of time that it would be impossible to ignore its existence on the ground of paucity of evidence in a particular case. In a recent case of this Court, Ramachandra Tripathy v. Maguni Tripathy (1859) unreported Case. Das, J. took the same view and held that Oriya Brahmins of Ganjam were governed by the laws and customs relating to adoption, prevailing in the Southern part of the State. 8. I have therefore arrived at the conclusion that there is a custom among the Oriya Brahmins of Ganjam of adopting a sister's son and that the adoption of Brundaban is consequently not invalid. Once Brundaban's adoption is upheld the Plaintiff's suit must fail as he has no locus standi to question the adoption of Defendant No. 1 by Defendant No. 2. It is therefore unnecessary to go into the question of the adoption of Defendant No. 1. 9. The appeal is allowed, the judgment of the learned Subordinate Judge is set aside and that of the Munsif is restored. The Plaintiff's suit is dismissed with costs throughout. Rao, J. 10. I agree. 11. Appeal allowed. Final Result : Allowed