JUDGMENT :- The appellants in this Second Appeal are the widow and a minor daughters of one Lokanath Goswami, who died in the year, 1953. The first respondent Jayanta Kumar Goswami, is the son of one Ibeton Devi, (the deceased sister of Lokanath Goswami) and her husband Gourachandra Sarma (P.W. 4). Jayanta Kumar Goswami, brought the suit in 1958 as a minor against the appellants claiming that he was adopted by Lokanath Goswami when he was 3 months old, after the death of his mother Ibeton Devi at a time when Lokanath Goswami had no children of his own. The allegation in paragraph 2 of the plaint is that the adoption was done according to the rite and customs under Hindu Law with the agreement of the first appellant - Ketuki Devi and that after the said adoption Lokanath Goswami and Ketuki Devi, brought him up and all rituals for adoption, Upanayanam etc., were performed by Lokanath Goswami and he was known during the life-time of Lokanath Goswami as his son. It was further alleged that after the death of Lokanath Goswami, the first respondent performed the Sradha Ceremony. It was further alleged that sometime before his death, Lokanath Goswami made provision that the first respondent would as usual inherit the land of Lokanath Goswami and that the appellants would have the right to occupy the Ingkhol left by him. The first respondent filed the suit for declaration of his title to the lands as the adopted son and claimed khas possession of the land from the appellants and from the tenant, who was defendant No. 5. 2. The appellants disputed the case of adoption. They stated that when the first respondents mother died, he was brought from his fathers house by Lokanath Goswami s mother and sister and was brought up in a separate house adjacent to Lokanath Goswamis house and further that Lokanath Goswami had an intention to adopt the first respondent and perform the Upanayanam ceremony, but that the lather of the first respondent and the elder brother of Lokanath Goswami were not agreeable to the adoption, on the ground that one could not adopt the son of his sister as his son according to the Hindu Shastra and so the question of adoption was dropped and Upanayanam ceremony was performed in his own Gotra. They also denied that the first respondent performed the Sradha ceremony of Lokanath Goswami or that the first respondent was looked upon as the son of Lokanath Goswami. They also denied the alleged arrangement by late Lokanath Goswami that the first respondent should indent his properties. 3. The case went for trial on these averments toy the parties. The learned Subordinate Judge (II) framed an issue as issue No. 2. "Issue No. 2 - Was the plaintiff adopted by Lokanath Goswami ? If so, was there any valid adoption under the local custom ? Is there any custom of adoption of sisters son ?" One is unable to understand how such an issue was raised at all, in this case, as there was no pleading by the first respondent that there was any local custom or family custom of adoption of a sisters son. It is well known that under Hindu Law there can never be an adoption of a boy whose mother the adopting father could not have legally married and hence the adoption of a sisters son was against Hindu Law. Of course, such a prohibition under Hindu Law can be got over by custom in particular communities and the adoption of a sisters son can be valid by proof of such custom whether it be a local custom or a family custom. But if there was such a local custom or family custom, which would over-ride the Hindu Law, such a local custom or family custom has got to be specifically pleaded in the plaint. On the other hand, what we find in this case is that, no such custom was set up in the plaint and it was stated that the plaintiff was adopted according to the rite and customs under Hindu Law. No special local custom or family custom permitting the adoption of a sisters son was thus, pleaded. It was the appellants, who in their written statement stated that the idea of adopting the plaintiff, which was originally thought of was given up, because under Hindus Shastras, a sisters son could not be adopted, and the father of the plaintiff and the elder brother of Lokanath Goswami objected to the adoption on that ground. If the plaintiff was disputing this averment in the written statement, he could have applied for a reply statement to be filed. If the plaintiff was disputing this averment in the written statement, he could have applied for a reply statement to be filed. But no such reply statement was filed in the case. In the absence of any such reply statement and in the absence of any plea of local custom or family custom, one fails to understand how the Subordinate Judge raised issue No. 2 as stated above and how he allowed oral evidence to be let in on the side of the plaintiff regarding such local custom or family custom. 4. One would have expected the Subordinate Judge to deal with this issue in the first instance, even if he was allowing the plaintiff to let no evidence regarding such custom. But I find that both the Subordinate judge as well as the District Judge in their judgments relegated this question to the background and dealt with the case of the plaintiff as to whether there was any such adoption. The fact of adoption will really come in, only after the custom was established, as otherwise, even if the adoption was proved, it will be invalid. In support of the fact of adoption, evidence was allowed to be let in not only about the ceremony of adoption, but also about the Annaprasanam, the Upanayanam and the ear-boring ceremony of the plaintiff and also about the performance of the Sradna ceremony of Lokanath Goswami by the plaintiff. The plaintiff, no doubt, examined many witnesses in support of these ceremonies. Both the Subordinate Judge and District Judge dealt with such evidence in the first instance and were satisfied regarding the factum of adoption and the performance of the Annaprasanam, Upanayanam and ear-boring ceremonies of the plaintiff and the Sradha ceremony performed by the plaintiff and having found in favour of the plaintiff on these points, it became easy for them to go further and hold that there was a custom which permitted the adoption of a sisters son. This, in my opinion, vitiated the judgments of both the Subordinate Judge and the District Judge regarding the validity of the adoption. 5. The learned District Judge in dealing with the validity of the adoption, in a way, dealt with the absence of any plea of custom in the plaint. This, in my opinion, vitiated the judgments of both the Subordinate Judge and the District Judge regarding the validity of the adoption. 5. The learned District Judge in dealing with the validity of the adoption, in a way, dealt with the absence of any plea of custom in the plaint. The stated that pleadings in the State of Manipur were in a stage of infancy and so they have to be liberally construed and he was, therefore, prepared even in the absence of any such plea of custom to go into the question of the custom, in respect of which evidence had already been let in. He stated that the defendants did not raise any objection when issue 2 was raised or when evidence was let in and hence they have not been prejudiced. I am unable to understand this observation of the District Judge because the defendants had stated even in their written statement that the adoption did not take place even though Lokanath Goswami wanted to adopt the plaintiff, because under Hindu Law a sisters son could not be adopted. This plea of the defendants was not only a plea against any such family custom of local custom in this particular case, but amounted even to a statement that, in matters of adoption, this community followed the ordinary Hindu Law that a sisters son cannot be adopted. Thus, it seems to me that the Subordinate Judge was wrong in having permitted evidence to be let in of a custom negativing the ordinary rule of Hindu Law, when there was no such plea of custom in the plaint. 6. But I do not want to dispose of this cast on that ground alone, as a lot of evidence was permitted to be let in on the side of the plaintiff regarding such custom. I shall therefore proceed to deal with the evidence of the custom so let in. But before I proceed to do so, it is necessary for me to say that the burden to prove a particular custom is on the person who sets it up. I shall therefore proceed to deal with the evidence of the custom so let in. But before I proceed to do so, it is necessary for me to say that the burden to prove a particular custom is on the person who sets it up. But, even before we deal with the burden of proof, it is necessary to say that there should be an averment regarding the nature of that custom, so that we may know what a party sets out to prove in this particular case, after perusing the entire evidence, I have not been able to understand, in the absence of any averment, as to whether the plaintiff set out to prove a local custom among the Manipuris or a family custom in this particular community of Goswamis in Manipur, who were said to have originally belonged to a place called Santipur in West Bengal and who were said to have later migrated to Manipur. The lower Courts also do not appear to have understood whether the plea of the plaintiff was of a family custom or a local custom. The evidence of witnesses on the side of the plaintiff did not also make it clear whether it related to a family custom or local custom. If it was a family custom, it must have originated in Santipur. If it was a local custom, it must have, been a custom obtaining among the Manipuris and the Goswami community must have adopted it after their migration in Manipur. From the evidence, it is not clear which custom was being set up. Some witnesses have spoken about local custom and some witnesses of the family custom among the Goswamis at Santipur. It is for this reason that I stated in the beginning that without a specific averment regarding the particular nature of the custom, particularly, where it conflicts with Hindu Law and Shastras, prevaricating and rambling evidence on the matter should not have been allowed to be let in. The defendants had a right to know what was the particular custom, which the plaintiff was setting up. Neither of the lower Courts have analysed the evidence to find out whether the plea was of a family custom or of a local custom. Nor do their findings show whether they accepted a family custom or local custom as having been proved. Their finding is a confused one. 7. Neither of the lower Courts have analysed the evidence to find out whether the plea was of a family custom or of a local custom. Nor do their findings show whether they accepted a family custom or local custom as having been proved. Their finding is a confused one. 7. Before I proceed to analyse the evidence, it is necessary further to say that a custom in order to be accepted must be proved to be ancient, certain and reasonable and that it must be construed strictly. It has to be established to be so by clear and unambiguous evidence so that the Courts can be assured of its existence and of the fact that it possessed the condition of antiquity and certainty on which alone its legal title to recognition depends. A single instance or even two or three instances will not prove a custom, because the very essence of a custom is that it derives its force from long usage and thereby it has obtained the force of law. Bearing this in mind, we shall proceed to deal with the evidence. I am proposing to deal with the evidence of the case, because the proof of the custom in this particular case is not a mere question of fact, as we have got to see from the evidence adduced, whether the essentials of a valid custom, as I have set forth above, have in fact, been proved and whether the particular custom has obtained the force of law. This is particularly so in this case, because the custom which was accepted as proved by the lower Courts! was not in fact, alleged in the pleadings. 8-10. Three learned people who are all past the age of 70 years were examined on plaintiffs side as P.Ws. 1 to 3 to speak about the custom and their evidence has been very much relied on by the lower Courts, though I am sorry to say that the import of their evidence was not properly understood by the lower Courts. (His Lordship considered the evidence of these witnesses and proceeded) : 11. Thus, it will be seen that the evidence of P.Ws. 1 to 3 who were examined more or less as experts regarding local custom did not establish that there was any such local custom in Manipur of adopting a sisters son. (His Lordship considered the evidence of these witnesses and proceeded) : 11. Thus, it will be seen that the evidence of P.Ws. 1 to 3 who were examined more or less as experts regarding local custom did not establish that there was any such local custom in Manipur of adopting a sisters son. Nor did the evidence show that even if there was any such custom, the Goswamis who came from Santipur had adopted any such custom in their families. 12. In this connection, I may also refer to Chapter V of the Manipuri Customs (Codified by the Codification Committee). The Subordinate Judge, who dealt with this case was himself a member of this Codification Committee. lid Chapter V, it was stated that adoption was recognised in Manipur State and that there was only one form of adoption, namely, the Dattaka form. It was stated therein that a wife in the-life-time of her husband cannot adopt without his consent. This statement was opposed to the evidence of P.W. 2 that a wife can adopt a son to herself without the consent of her husband. It was further stated in Chapter V that the person, who can be adopted must be a male that he must belong to the same caste as his adoptive father and that at the same time he must cot be a man whose mother, the adoptive father could not marry. Again, it was stated in the same chapter that according to the prevailing custom in Manipur, an only son can be adopted though it was against Hindu Law. This last item would show that the Codification Committee had taken into account customs which go against Hindu Law, but which were recognised in Manipur. Thus, if there was a custom prevalent in Manipur of the sisters son being adopted, which was against Hindu Law, the Codification Committee would certainly have recognised it. Again, it is stated in Chapter V that apart from the customary rituals of giving and taking, Sagei Chakkhangba or Datta Home, the factum of adoption must be in wilting and registered. 13. Again, it is stated in Chapter V that apart from the customary rituals of giving and taking, Sagei Chakkhangba or Datta Home, the factum of adoption must be in wilting and registered. 13. The learned Subordinate Judge, who was himself a member of this Codification Committee disposed of the Codified Manipuri Customs by saying that it was a record prepared for the purpose of putting up before the Legislature and that it was not published for public criticism and that the records show that the entries were made on the personal observance of the members of the Committee and it was not unlikely that there were instances of customs and practices, which might be unknown to them and that oral evidence was permissible to give definite and well-established instances. It is clear however that the members of the Codification Committee consisting of Judges of the Chief Court and other Manipuris of standing were not aware of any custom permitting adoption of a sisters son in Manipur, but on the other hand, even though they had given other instances, where customs opposed to Hindu Law were recognised, in Manipur even in matters of adoption, they were positive that a person whose mother the adoptive father could not marry cannot be adopted. If therefore oral evidence is adduced against the record of the Codification Committee, it must be of a kind which would definitely establish the custom beyond any manner of doubt giving concrete instances where such adoptions have been made and accepted without dispute. I have dealt with the evidence of P.Ws. 1 to 3 and I have pointed out that while P.Ws. 1 and 2 did not know of any instance of such adoption, the only instance given by P.W. 3 was an adoption which took place 40 years ago. One solitary instance will not prove the custom among the Manipuris as a whole or among the Goswamis, who came to Manipur from Santipur. Thus, the local custom of adoption of a sisters son has not been proved by the plaintiff. There was no evidence that the Goswamis after their arrival in, Manipur from Santipur had accepted any such local custom as applying to them. 14-18. Next we come to the family custom among the Goswamis. Thus, the local custom of adoption of a sisters son has not been proved by the plaintiff. There was no evidence that the Goswamis after their arrival in, Manipur from Santipur had accepted any such local custom as applying to them. 14-18. Next we come to the family custom among the Goswamis. In dealing with this family custom, it has to be first mentioned that no one single instance of such adoption among the Goswamis at Santipur has been spoken to by any witness from personal knowledge. Nor has any such adoption among the Goswamis after they arrived in Manipur been spoken to by a single witness on the side of the plaintiff. The witnesses who spoke about such family custom are P.Ws. 5, 9, 10 and 11. I am unable to understand how the lower Courts accepted their evidence as disinterested. (His Lordship discussed their evidence and proceeded :) 19. This kind of evidence, which was being developed from witness to witness could never be accepted at all. After all, even if the evidence of P.Ws. 5, 9, 10 and 11, which itself was not consistent by any means, was true, Brajamohon Goswami even though the eldest of the Goswami Sagei at the time cannot pose himself as a Law-maker or as a creator of customs among the Goswamis. It may be that Goswamis adopted only persons having some blood relationship, but persons having blood relationship can be persons whose mothers the adoptive father can marry, as for example, a direct brothers son or a cousin brothers son etc. That will not be against the Shastras. But it did not follow from this that the Goswamis had a custom which went against, the Shastras, namely of a person whose mother the adoptive father could not marry being taken in adoption. The very fact that Lokanath Goswami and Brajamohon Goswami themselves felt doubts on the matter and wanted that the Sagei should agree to the proposal showed that an innovation was being attempted which, required the permission of the Sagei people. Any amount of permission by the Sagei people cannot make an invalid adoption a, valid one. Nor was any permission of the Sagei required if the adoption was in accordance with the custom of the Sagei. Thus, the very evidence given by P.Ws. Any amount of permission by the Sagei people cannot make an invalid adoption a, valid one. Nor was any permission of the Sagei required if the adoption was in accordance with the custom of the Sagei. Thus, the very evidence given by P.Ws. 5, 9, 10 and 11, in my opinion, went against the plea of family custom among the Goswamis and was proof that the Sagei were seeking to create a new custom of adoption for the first time. I am unable to understand how the lower Courts accepted such evidence as proving a family custom. 20. The real truth, was that neither of the lower Courts attempted to sift or analyse the evidence given by the witnesses and neither of the Courts tried to see if it was a local custom or a family custom which was set up by the plaintiff or if any such, ancient and certain custom has, in fact, been proved. The evidence as analysed by me clearly proved that neither a local custom nor a family custom was proved and that Brajamohon Goswami was only attempting an innovation for the first time in allowing the adoption of the plaintiff to be recognised by Goswami Sagei. Even this is only on the supposition that P.Ws. 5, 9, 10 and 11 who were interested in the success of the plaintiffs case were giving true evidence. 21. I shall now come to the question whether the factum of adoption apart from its validity or invalidity has really been proved in this case. Before I deal with the evidence, I have once again got to refer to the plaint allegation regarding the adoption. In paragraph 2 of the plaint, it was stated that Ibeton Devi, the mother of the plaintiff died when the plaintiff was 3 months-old and so, it had became very difficult to keep the baby alive and so Lokanath Goswami took, him and adopted him as his son according to the rite and customs under Hindu Law and Lokanath Goswami and his wife Ketuki Devi also agreed to it and adopted the boy and he was being brought up by Lokanath Goswami and Ketuki Devi and all rituals for adoption, Upanayanam etc., were performed by Lokanath Goswami. Thus, this allegation would show that the first appellant Ketuki Devi agreed to the adoption and recognised the plaintiff as her son after the adoption. 22. Thus, this allegation would show that the first appellant Ketuki Devi agreed to the adoption and recognised the plaintiff as her son after the adoption. 22. What was, however, sought to be proved by the plaintiffs witnesses was something quite different. According to P.W. 5, when the plaintiff s mother died and Lokanath Goswami took the boy, Lokanath Goswami had become separated from Ketuki Devi and after the so-called adoption, the plaintiff was being brought up by Lokanath Goswamis mother P.W. 12. Not one witness on the plaintiffs side said that Ketuki Devi had any hand in the adoption or in the subsequent ceremonies, like Annaprasanam, ear-boring ceremony or Upanayanam of the plaintiff. This really appeared strange. It would only show that the story of adoption cannot be true. 23. We have to remember that Lokanath Goswamis mother and another sister Ibemcha Devi were living in Lokanaths house at the time when the plaintiffs mother Ibeton Devi died leaving the plaintiff as a 3 months old child. Under such circumstances, it was quite possible that they brought the child to his house where it could be taken care of by them. That, in fact, is the defence case and it is made probable by the evidence given by the plaintiffs witnesses which as I showed went against the plaint allegation. It is clear from the evidence of P.W. 12, the mother of Lokanath Goswami that she was bringing up the plaintiff after he was brought to Lokanath Goswamis house. 24. In this connection, I have to say that the lower Courts failed to notice the significance for the evidence of P.W. 5 that Lokanath Goswami brought the plaintiff to Brajmohon Goswami, the very day after death of the plaintiffs mother saying that he wanted to adopt the child and that the Sagei Chakkangba or feast for the adoption was held the day after that. One fails to understand how such adoption can be held during the death pollution or Yummangba of the mother of the child. Until adoption is over, the plaintiff belongs to his fathers Sagei and so he must also have Yummangba on his mothers death. The adoption ceremony cannot take place during the Yummangba. This very evidence given by P.Ws. 5, 9, 10 and 11 showed that their story of the Sagei feast for the adoption within two days of the mothers death must be totally false. The adoption ceremony cannot take place during the Yummangba. This very evidence given by P.Ws. 5, 9, 10 and 11 showed that their story of the Sagei feast for the adoption within two days of the mothers death must be totally false. Further, if we are to believe the evidence of P.W. 4, he simply handed over the plaintiff to Lokanath Goswami the day after his mothers death and P.W. 4 took no further part in any ceremony relating to the adoption. This fact appears very strange to me. Such handing over of the child to Loknath Goswami in the presence of no other person and during Yummangba cannot be treated as the ceremony of giving and taking, which is legally necessary for an adoption. Such handing over is again more in accordance with the defence case that Lokanath Goswami took the boy because he wanted to look after his deceased sisters son who was only a baby at the time, with the help of his mother and another sister. 25. The evidence on the plaintiffs side did not show that there was any Datta Homa for this adoption, even though Datta Homa is essential for the validity of an adoption. I am not saying much about it, because, according to the report of the Codification Committee, it was enough among Manipuris if a Sagei Chakkhangba with or without Datta Homa was held for the ceremony of adoption and there was evidence of Chakkhanba in this case. But still, there was no evidence that Goswamis who came from Santipur had adapted this Manipuri custom. My real doubt in this case is whether the evidence of P.Ws. 5, 9, 10 and 11 that this Sagei Chakkhangba was held on the 3rd day after the death of plaintiffs mother could at all be believed. According to D.W. 5 Ketuki Devi and her father, D.W. 4, no such Sagei feast was at all held and there was no adoption at all. The evidence of D.Ws. 4 and 5 was discounted by the lower Courts as they were interested witnesses. But the lower Courts failed to see that P.Ws. 5, 9, 10 and 11 were as much interested on the plaintiffs side. Their evidence also should not therefore have been relied on by the lower Courts. 26. The evidence of D.Ws. 4 and 5 was discounted by the lower Courts as they were interested witnesses. But the lower Courts failed to see that P.Ws. 5, 9, 10 and 11 were as much interested on the plaintiffs side. Their evidence also should not therefore have been relied on by the lower Courts. 26. It is unnecessary to deal at greater length with the story of the factum of adoption of the plaintiff, as even if any such adoption ceremony "was held, it cannot validate the adoption in the absence of proof of the custom as I have stated above. It is again unnecessary to deal at any length with the evidence relating to Annaprasanam, earboring, Upanayanam etc., of the plaintiff as such ceremonies cannot validate an invalid adoption. It is, however, interesting to note that at none of these ceremonies, even according to the plaintiffs witnesses, did Ketuki Devi take any part. The story that Ketuki Devi was separated from Lokanath Goswami at the tune of adoption is clearly false, as Ketuki Devi had admittedly 3 daughters born to her by Lokanath Goswami, even, after the so-called separation. In fact, there is no such case of separation in the plaint and according to the plaint allegations Ketuki Devi had also agreed to the adoption of the plaintiff, which fact was certainly not attempted to be proved in the course of the plaintiffs evidence. 27. From the above discussion, it will be clear that the custom of adopting a sisters son whether it is local custom in Manipur or a family custom among the Goswamis has not been proved by the plaintiff. The burden is heavy on the plaintiff to prove it particularly as such a custom was in derogation of Hindu Law. Secondly, the evidence relating to the actual adoption of the plaintiff, which was said to have taken place on the 3rd day of his mothers death was hardly believable. The plaintiff has not, therefore, proved the case of adoption and the lower Courts were wrong in accepting the adoption as true. Secondly, the evidence relating to the actual adoption of the plaintiff, which was said to have taken place on the 3rd day of his mothers death was hardly believable. The plaintiff has not, therefore, proved the case of adoption and the lower Courts were wrong in accepting the adoption as true. The lower Courts went wrong, because they put the cart before the horse and dealt with the truth of the adoption first and after having accepted the evidence regarding the actual adoption, they found it easy to accept also the evidence relating to the custom, even though there was no plea of such custom and the evidence itself did not warrant the acceptance of the custom as true. 28. In the view which I have taken in this appeal, it becomes unnecessary to deal with the memorandum of cross-objections filed by the first respondent-plaintiff. Neither the Subordinate Judge nor the District Judge believed the case set up for the plaintiff that there was an arrangement before the death of Lokanath Goswami by which he gave the land to the plaintiff. The lower Courts therefore allowed the plaintiff only a half share in the properties left by Lokanath Goswami and held that the first appellant Ketuki Devi was entitled to the other half share under the Hindu Womens Right to Property Act which has been extended to Manipur. They disbelieved the evidence about the arrangement which was spoken to only by P.Ws. 5 and 12. From this itself the lower Courts could have understood that P.W. 5 and P.Ws. 9 to 12 were interested witnesses and so their evidence even relating to the adoption required closer scrutiny by the Courts. In any case, as I have held that the adoption was invalid and as I have disbelieved the adoption itself, the question raised in the memorandum of cross-objections in which the plaintiff has claimed the other half of the property also on the strength of the arrangement spoken to by P.Ws. 5 and 12 does not merit any notice. 29. In the result, therefore, the appeal is allowed. The decisions of the lower Courts are set aside and the plaintiffs suit is dismissed with the costs of the appellants, both in this Court and in the Courts below, which will be paid by the first respondent. 5 and 12 does not merit any notice. 29. In the result, therefore, the appeal is allowed. The decisions of the lower Courts are set aside and the plaintiffs suit is dismissed with the costs of the appellants, both in this Court and in the Courts below, which will be paid by the first respondent. The memorandum of cross-objections filed by the first respondent is also dismissed with the costs of the appellants. Appeal allowed.